Mono 8 - 2009 2010 December

Criminal Procedure Monograph 8: Felony Sentencing
September-December 2009 Updates
Updates have been issued for Criminal Procedure Monograph 8. A summary of each update
appears below. The updates have been integrated into the website version of the monograph;
consequently, some of the page numbers may have changed. Clicking on the links below will
take you to the page(s) in the monograph where the updates appear. The text added or changed in
each update is underlined.
8.2(C) History of Sentencing in Michigan
“An error in scoring the judicial [sentencing] guidelines does not provide a basis for appellate
relief.” People v Walker (Robert), ___ Mich ___, ___ (2009), citing People v Raby, 456 Mich
487, 496 (1998).
8.2(D) History of Sentencing in Michigan
487, 496 (1998).
8.6(B) Scoring an Offender’s Offense Variables (OVs)

[OV 1—Aggravated Use of a Weapon]
“Harmful biological substance” for purposes of scoring OV 1 includes fecal matter because
“human fecal matter contains harmful bacteria that could cause disease in another human
being.” People v Huddleston, unpublished opinion per curiam of the Court of Appeals, issued
November 12, 2009 (Docket No. 285961) (20 points were properly scored for OV 1 where the
defendant threw feces into the face and mouth of a jail deputy, and the Court took judicial
notice of human fecal matter’s potential to cause disease in another human being because of the
harmful bacteria contained in it).
8.6(M) Scoring an Offender’s Offense Variables (OVs)

[OV 12—Contemporaneous Felonious Criminal Acts]
OV 12 must be scored using all conduct that qualifies as contemporaneous felonious criminal
activity before the court can proceed to score OV 13. People v Bemer, ___ Mich App ___, ___
(2009). Conduct that is properly scored under OV 12 may not be omitted from OV 12 simply
because scoring the conduct under OV 13 would yield a higher OV total. Bemer, supra at ___.
Page 1 of 5
8.6(N) Scoring an Offender’s Offense Variables (OVs)
[OV 13—Continuing Pattern of Criminal Behavior]
All conduct that can be scored under OV 12 must be scored under that variable before the court
can proceed to score OV 13. People v Bemer, ___ Mich App ___, ___ (2009). That is, when
scoring OV 13, “the trial court cannot consider any conduct that was or should have been
scored under [OV 12].” Bemer, supra at ___.
8.6(T) Scoring an Offender’s Offense Variables (OVs)

[OV 19—Threat to the Security of a Penal Institution or Court or
Interference with the Administration of Justice or Emergency Services]
Ordinarily, “a general denial of accusation by a defendant cannot support the scoring of OV

19[.]”People v Jackson, unpublished opinion per curiam of the Court of Appeals, issued
October 1, 2009 (Docket No. 285285). However, OV 19 is properly scored at 10 points where
the defendant “actively lie[s] to the police, providing a false version of events designed to avoid
arrest and to impugn the conduct and reputation of the victim.” Jackson, supra. In Jackson,
supra, the Court found that the defendant’s “active lies, attempting to portray the victim as the
aggressor and designed to thwart prosecution, interfered with the administration of justice.”
8.37 Restitution
The amount of court-ordered restitution may not be reduced by the amount of an unpaid civil
judgment obtained by the victim against the defendant. People v Dimoski, ___ Mich App ___,
___ (2009).
8.52 Appellate Review of Felony Sentences
487, 496 (1998).
Once a defendant is discharged from parole, the Department of Corrections (DOC) is not
permitted to cancel, revoke, or rescind a parole discharge order after the final order of discharge
has been entered. People v Holder, 483 Mich 168, 173 (2009).
Page 2 of 5
Previous updates issued since the April 2009 CD was released:
May-August 2009 Updates
8.6(H) OV 7—Aggravated Physical Abuse
“‘[S]adism’ denotes conduct that exceeds that which is inherent in the commission of the
offense.” People v McReynolds, unpublished opinion per curiam of the Court of Appeals, issued
June 30, 2009 (Docket No. 282582).
8.6(J) OV 9—Number of Victims
“[A] defendant’s conduct after an offense is completed does not relate back to the sentencing
offense for purposes of scoring offense variables unless a variable specifically instructs
otherwise” (the defendant’s flight from the police after breaking and entering an unoccupied
building was an impermissible basis for scoring the number of victims under OV 9, because OV
9 does not expressly authorize the consideration of conduct that occurs after the sentencing
offense is completed). People v McGraw, 484 Mich 120, 122, 133-135 (2009).
OV 9 was improperly scored at 25 points for the crime of using a computer to produce child
sexually abusive material, when the circuit court counted as victims the children depicted in
thousands of pornographic images that the defendant downloaded from the Internet and copied
onto discs. People v Houck, unpublished opinion per curiam of the Court of Appeals, issued July
23, 2009 (Docket No. 285203). Because the defendant did not have any contact with the
children, he did not place them “in danger of physical injury or loss of life” (MCL 777.39(2)(a));
therefore, the correct score for OV 9 was zero points. Id.
8.6(K) OV 10—Exploitation of a Vulnerable Victim
The trial court improperly assessed 15 points for OV 10 where the girls at whom the defendant’s
grooming was directed were not victims of the criminal activity for which the defendant was
ultimately convicted. People v Houck, unpublished opinion per curiam of the Court of Appeals,
issued July 23, 2009 (Docket No. 285203).
8.9(B) Felony Offenses enumerated in MCL 777.18 (Offenses Predicated on an

Underlying Felony
“MCL 333.7413(2), by authorizing a trial court to enhance the sentence of a defendant who is a
repeat drug offender to a ‘term not more than twice the term otherwise authorized,’ allows the
trial court to double both the defendant’s minimum and maximum sentences.” People v Lowe,
484 Mich 718, 719-720 (2009).
Page 3 of 5
8.16(C) Sentencing an Offender for a Subsequent “Major Controlled Substance
Offense”
“[MCL 333.]7413(2)’s authorization for a trial court to imprison a defendant for a ‘term not
more than twice the term otherwise authorized’ signifies that both the minimum and maximum
sentences must be doubled to fashion an enhanced sentence that is twice the ‘term otherwise
authorized.’” People v Lowe, 484 Mich 718, 724 (2009).
8.30 Additional Information to Consider Before Imposing Sentence
“[G]enerally, a court may neither solicit nor consider polygraph-examination results for
sentencing, People v Towns, 69 Mich App 475, 478 (1976), and the consideration of polygraph-
examination results is generally considered error that requires resentencing, People v Allen, 49
Mich App 148, 151-152 (1973).” (Parallel citations omitted.) People v Anderson, 284 Mich App
11, 16 (2009).
8.31 Sentence Credit
“A defendant is entitled to credit for time served prior to sentencing [under MCL 769.11b] even
if he [or she] is sentenced to serve a mandatory term of life imprisonment without parole.”
People v Seals, ___ Mich App ___, ___ (2009).
“When a defendant is incarcerated in another jurisdiction, ‘whether a hold has, or could have,
entered against the defendant is irrelevant for purposes of determining how much time the
defendant has served “for the offense of which he [or she] is convicted.”’” People v Patton, ___
Mich App ___, ___ (2009), quoting People v Adkins, 433 Mich 732, 748 (1989), quoting MCL
769.11b.
People v Idziak, 484 Mich 549, 562 (2009), “reaches essentially the same conclusion as the
Court of Appeals did in [People v] Seiders[, 262 Mich App 702 (2004),] and [People v] Filip[,
278 Mich App 635 (2008)]—that the jail credit statute does not generally apply to parolees who
commit new felonies while on parole—[but] on the basis of a somewhat different analysis.” The
Idziak Court held that “the jail credit statute does not apply to a parolee who is convicted and
sentenced to a new term of imprisonment for a felony committed while on parole because, once
arrested in connection with the new felony, the parolee continues to serve out any unexpired
portion of his [or her] earlier sentence unless and until discharged by the Parole Board. For that
reason, he [or she] remains incarcerated regardless of whether he [or she] would otherwise be
eligible for bond before conviction on the new offense.” Idziak, supra at 562. Because the
parolee is not being incarcerated due to being denied or unable to furnish bond for the new
offense, the jail credit statute, MCL 769.11b, does not apply. Idziak, supra at 562-563.
Page 4 of 5
8.34 Costs
“The plain language of MCL 769.1k does not require the trial court to consider a defendant’s
ability to pay before imposing discretionary costs and fees . . . .” People v Wallace, 284 Mich
App 467, 470 (2009).
MCL 769.34(6) addresses the sentencing guidelines and the duties of the court when sentencing,
and it authorizes the court to order court costs (“[a]s part of the sentence, the court may also
order the defendant to pay any combination of a fine, costs, or applicable assessments”). People
v Lloyd, ___ Mich App ___, ___ (2009). Accordingly, the plain language of MCL 769.1k and
MCL 769.34(6) “expressly grant[] the trial court authority, when sentencing, to order a defendant
to pay court costs.” Lloyd, supra at ___.
Page 5 of 5
2006–December 2009
Felony Sentencing
8
Part I—Introduction
8.1 Scope of This Monograph .............................................................................5
8.2 History of Sentencing in Michigan .................................................................6
A. Indeterminate Sentencing .........................................................................6
B. Judicial Discretion and Appellate Review of Indeterminate Sentences ....7
C. The Judicial Sentencing Guidelines..........................................................8
D. The Statutory Sentencing Guidelines .....................................................10
Part II—Scoring the Statutory Sentencing Guidelines

8.3 Offenses to Which the Statutory Guidelines Apply......................................12
A. Offense Category (Crime Group)............................................................13
B. Crime Class ............................................................................................14
C. Attempts..................................................................................................15
8.4 Presentence Investigation Report (PSIR)....................................................15
A. PSIR Content Required for all Felony Offenses .....................................16
B. PSIR Content Required for Felony Offenses Under the Sentencing
Guidelines ...............................................................................................16
C. PSIR Content Defined by Court Rule......................................................17
D. PSIR Content Required in Limited Situations .........................................18
E. PSIR Must Be “Reasonably Updated” ....................................................19
8.5 Scoring an Offender’s Prior Record Variables (PRVs) ................................19
A. Ten-Year Gap Requirement for Prior Convictions and Adjudications.....20
B. Assignment to “Youthful Trainee” Status Under the PRVs .....................22
C. PRV 1—Prior High Severity Felony Convictions.....................................22
D. PRV 2—Prior Low Severity Felony Convictions .....................................24
E. PRV 3—Prior High Severity Juvenile Adjudications ...............................27
F. PRV 4—Prior Low Severity Juvenile Adjudications ................................28
G. PRV 5—Prior Misdemeanor Convictions or Prior Misdemeanor
Juvenile Adjudications ............................................................................29
H. PRV 6—Relationship to the Criminal Justice System.............................33
I. PRV 7—Subsequent or Concurrent Felony Convictions ........................36
8.6 Scoring an Offender’s Offense Variables (OVs)..........................................38
A. OVs According to Crime Group ..............................................................39
B. OV 1—Aggravated Use of a Weapon .....................................................41
C. OV 2—Lethal Potential of the Weapon Possessed or Used...................46
D. OV 3—Physical Injury to a Victim ...........................................................48
E. OV 4—Psychological Injury to a Victim...................................................53
F. OV 5—Psychological Injury to a Member of a Victim’s Family ...............55
G. OV 6—Intent to Kill or Injure Another Individual .....................................56
H. OV 7—Aggravated Physical Abuse ........................................................58
I. OV 8—Victim Asportation or Captivity ....................................................62
J. OV 9—Number of Victims.......................................................................65
K. OV 10—Exploitation of a Vulnerable Victim............................................68
L. OV 11—Criminal Sexual Penetration......................................................75
Michigan Judicial Institute © 2005–December 2009 Page 1

Section
M. OV 12—Contemporaneous Felonious Criminal Acts..............................78

N. OV 13—Continuing Pattern of Criminal Behavior ...................................80
O. OV 14—Offender’s Role .........................................................................83
P. OV 15—Aggravated Controlled Substance Offenses .............................85
Q. OV 16—Property Obtained, Damaged, Lost, or Destroyed ....................87
R. OV 17—Degree of Negligence Exhibited................................................88
S. OV 18—Operator Ability Affected by Alcohol or Drugs...........................89
T. OV 19—Threat to the Security of a Penal Institution or Court or
Interference with the Administration of Justice or Emergency
Services ..................................................................................................91
U. OV 20—Terrorism...................................................................................93
Part III—Recommended Minimum Sentences for Offenders

Not Sentenced as Habitual Offenders
8.7 Sentencing Grids .........................................................................................95
A. Prison Cells.............................................................................................96
B. Straddle Cells..........................................................................................96
C. Intermediate Sanction Cells ....................................................................97
8.8 Felony Offenses Enumerated in MCL 777.11 to MCL 777.17g...................97
8.9 Felony Offenses Enumerated in MCL 777.18 (Offenses Predicated
on an Underlying Felony) ............................................................................98
A. Controlled Substance Violations Involving Minors or Near School
Property—MCL 333.7410 .......................................................................99
B. Subsequent Controlled Substance Violations—
MCL 333.7413(2) or (3) ........................................................................101
C. Recruiting or Inducing a Minor to Commit a Controlled Substance
Felony—MCL 333.7416(1)(a) ...............................................................102
D. Conspiracy—MCL 750.157a(a) ............................................................103
E. Recruiting or Inducing a Minor to Commit a Felony—
MCL 750.157c.......................................................................................103
F. Voluntarily Allowing a Prisoner to Escape—MCL 750.188 ...................103
G. Felony Offenses Committed in Weapon-Free School Zones—
MCL 750.237a ......................................................................................104
H. Larceny of Rationed Goods—MCL 750.367a .......................................105
8.10 Felony Offenses Enumerated in MCL 777.19 (Attempts)..........................105
Part IV—Habitual Offender Provisions

8.11 Establishing a Defendant’s Habitual Offender Status................................106
A. Notice of Intent to Seek Enhancement .................................................106
B. List of Prior Convictions on Which Prosecutor Will Rely.......................107
C. Establishing the Existence of a Prior Conviction...................................108
8.12 Determining a Habitual Offender’s Recommended Minimum Sentence
Range Under the Statutory Sentencing Guidelines...................................111
8.13 Second Habitual Offender Status (HO2) ...................................................113
8.14 Third Habitual Offender Status (HO3) .......................................................114
8.15 Fourth Habitual Offender Status (HO4) .....................................................115
8.16 Sentencing an Offender for a Subsequent “Major Controlled
Substance Offense”...................................................................................116
A. Mandatory Sentence Enhancement—MCL 333.7413(1) and (3)..........118
Page 2 Monograph 8—Felony Sentencing (2005–December 2009)

Monograph 8—Felony Sentencing (2005–December 2009)
B. Application of the General Habitual Offender Statutes to Cases

Involving Controlled Substance Offenses .............................................119
C. Discretionary Sentence Enhancement—MCL 333.7413(2) ..................121
8.17 Application of the Habitual Offender Provisions to Offenses Involving
Statutory Escalation Schemes...................................................................122
A. Subsequent Criminal Sexual Conduct (CSC) Convictions....................123
B. Subsequent OUIL-3d Convictions.........................................................124
C. Subsequent First-Degree Retail Fraud Convictions..............................125
D. Subsequent Fleeing and Eluding Convictions ......................................126
Part V—The Sentencing Hearing

8.18 Requirements and Rights ..........................................................................128
8.19 Review of the PSIR ...................................................................................130
8.20 Objections to Accuracy or Content of the PSIR.........................................130
8.21 Challenges to the Constitutional Validity of a Prior Conviction or
Adjudication ...............................................................................................131
A. Prima Facie Showing Required ............................................................132
B. Burden-Shifting Analysis.......................................................................133
8.22 Sentencing Court’s Duty to Remedy Errors...............................................134
A. Determining the Information’s Accuracy or Relevance .........................135
B. Ignoring the Disputed Information.........................................................135
C. Harmless Error......................................................................................136
8.23 Allocution ...................................................................................................137
8.24 Crime Victim’s Impact Statement ..............................................................139
8.25 Additional Information Required at Sentencing .........................................142
Part VI—Fashioning an Appropriate Sentence

8.26 Scope and Objectives................................................................................143
A. Intermediate Sanctions .........................................................................144
B. Straddle Cells........................................................................................148
8.27 Indeterminate Sentences...........................................................................149
A. The Tanner Rule ...................................................................................150
B. The Tanner Rule Extended to Habitual Offenders................................150
C. The Tanner Rule Codified.....................................................................151
8.28 Concurrent and Consecutive Sentences ...................................................152
A. Computation of Sentences....................................................................153
B. Mandatory Consecutive Sentences ......................................................154
C. Discretionary Consecutive Sentences ..................................................156
D. Felony-Firearm Convictions ..................................................................159
8.29 Principle of Proportionality.........................................................................159
A. Judicial Sentencing Guidelines .............................................................160
B. Statutory Sentencing Guidelines...........................................................160
C. When No Guidelines Apply to the Sentencing Offense ........................161
8.30 Additional Information to Consider Before Imposing Sentence .................161
A. Proper Considerations ..........................................................................162
B. Improper Considerations.......................................................................164
8.31 Sentence Credit.........................................................................................166
8.32 Sentence Bargains and Plea Agreements.................................................172

Section
Part VII—Fines, Costs, Assessments, and Restitution

8.33 Fines..........................................................................................................180
8.34 Costs .........................................................................................................181
A. Costs of Prosecution Authorized by Penal Statutes .............................184
B. Costs of Emergency Response and Prosecution Under MCL 769.1f ...185
C. Costs of a Court-Appointed Attorney ....................................................190
8.35 Minimum State Costs ................................................................................191
8.36 Crime Victim Assessment..........................................................................192
8.37 Restitution .................................................................................................193
8.38 Use of Bail Money to Pay Costs, Fines, Restitution, and Other
Assessments .............................................................................................195
8.39 Probation Supervision Fee ........................................................................197
Part VIII—Specific Types of Sentences

8.40 Probation ...................................................................................................197
8.41 Delayed Sentencing ..................................................................................205
8.42 Deferred Adjudication of Guilt ...................................................................208
A. Defendant Must Have No Previous Convictions for Offenses
Specified in Statute ...............................................................................209
B. Defendant’s Guilt Is Established by Plea or by Verdict.........................210
C. Defendant Must Consent to a Deferral of Adjudication.........................210
D. Defendant Placed on Probation and Proceedings Deferred .................211
E. Terms and Conditions of Probation Imposed Pursuant to Deferred
Adjudication Provisions.........................................................................211
F. Failure to Successfully Complete the Probationary Period...................213
G. Successful Completion of the Probationary Period...............................214
H. Discharge and Dismissal Without Entry of an Adjudication of Guilt......214
I. Record of Deferred Adjudication...........................................................215
J. Only One Discharge and Dismissal Available.......................................217
8.43 Youthful Trainee Act—Deferred Adjudication............................................217
8.44 Conditional Sentences ..............................................................................222
8.45 Suspended Sentences ..............................................................................223
8.46 Mandatory Sentences ...............................................................................224
8.47 Special Alternative Incarceration (SAI) Units—“Boot Camp”.....................224
A. Eligibility Requirements.........................................................................224
B. Post-Placement Considerations............................................................226
C. Placement in an SAI Program After a Sentence of Imprisonment ........226
Part IX—Sentence Departures

8.48 Requirements of a Sentence Departure ....................................................228
A. Substantial and Compelling Reason.....................................................230
B. Statutory Prohibitions............................................................................232
8.49 Downward Departures...............................................................................234
8.50 Upward Departures ...................................................................................235
A. Factors Related to a Victim of the Offense ...........................................236
B. Factors Involving the Offender..............................................................237
C. Factors Involving the Sentencing Offense ............................................241
8.51 Exceptions: When a Departure Is Not a Departure ...................................242

Part X—Selected Post-Sentencing Issues

8.52 Appellate Review of Felony Sentences .....................................................245
A. Invalid Sentences..................................................................................247
B. Correcting Invalid Sentences ................................................................249
C. No Remedy Available, Permitted, or Necessary...................................251
D. Sentences Imposed Under the Statutory Guidelines ............................253
E. Standards of Review.............................................................................255
8.53 Probation Revocation ................................................................................256
Appendixes
Appendix A—Felony Offenses by Crime Group and Severity
Appendix B—Sentencing Grids
Appendix C—List of Homicide Offenses
Appendix D—Statutory Offense Enhancement
Appendix E—Assaultive Crimes
Appendix F—MCL # and Alphabetical Lists of Felony Offenses
Appendix G—Offenses Requiring Mandatory Incarceration
Part I—Introduction
8.1 Scope of This Monograph
The primary objective of this monograph is to present a comprehensive

picture of the dynamic landscape of post-conviction proceedings in Michigan
since the legislative sentencing guidelines were adopted in 1998. Placing the
contemporary legislative guidelines in their proper context requires a
discussion of the larger picture of felony sentencing in Michigan
courtrooms—proceedings governed by constitutional and statutory law and
established long before the advent of sentencing guidelines, judicial or
legislative. To that end, the monograph will address various procedural and
statutory components of post-conviction proceedings, including the
respective rights and responsibilities of the court and the defendant. The
monograph will further discuss several fundamental characteristics of felony
sentences in Michigan, aspects such as proportionality, concurrent and
consecutive prison terms, and the requirement that sentences be
indeterminate. Also addressed in the monograph are the different types of
sentences available and any limitations on a sentencing court’s authority to
impose certain types of sentences in specific situations.
Discussion of evidentiary or constitutional challenges to the criminal

conviction underlying a specific sentence is beyond the scope of this
monograph. Also beyond the scope of this monograph is a comprehensive
discussion of the topics contained here as they may (or may not) apply to
juveniles. At times, the monograph makes general references to the subject
matter being discussed and its applicability to juveniles, but on none of those
occasions will the monograph contain an exhaustive treatment of the topic as

Section 8.2
it relates to juveniles. For a detailed discussion of proceedings involving

juveniles, see Miller, Juvenile Justice Benchbook: Delinquency & Criminal
Proceedings—Revised Edition (MJI, 2003-April 2009).
With the exception of the following section where the history of sentencing
guidelines in Michigan requires a discussion of the judicial sentencing
guidelines, all references to “the guidelines” are to the legislative or statutory
sentencing guidelines enacted by 1998 PA 317. Whenever the author intends
reference to the judicial sentencing guidelines, the reference will be clearly
specified.
*A complete Finally, this monograph is not intended to replace the publication titled
and up-to-date Sentencing Guidelines Manual,* a booklet published under varied cover and
version of this
manual is
in various formats by MJI, West Publishing, the Michigan Bar Association,
available on and other organizations. The format of the Sentencing Guidelines Manual
MJI’s website: more closely approaches that of a workbook, a format particularly suited for
www.courts. the business of scoring an offender’s prior record variables and offense
michigan.gov/
mji/resources/ variables. Although this monograph duplicates much of the information found
publications. in that manual, this monograph is meant to serve as a companion to the
workbook, a textbook that provides commentary, instruction, and detailed
analysis often unnecessary to an uncomplicated application of the guidelines
to an offense and the offender.
8.2 History of Sentencing in Michigan
A. Indeterminate Sentencing
Since a 1902 amendment to the state constitution, the Michigan Legislature

has been authorized to establish indeterminate sentences as punishment for
criminal offenses. People v Lorentzen, 387 Mich 167, 179-181 (1972); Const
1850, art 4, §47; Const 1908, art 5, §45; Const 1963, art 5, §28. The
sanctioning of indeterminate sentencing represents Michigan’s recognition
that criminal penalties should reflect the seriousness of the crime and the
history of the offender, and where possible, criminal punishment should
include some incentive to the convicted offender to change himself or herself.
Lorentzen, supra at 180; In re Manaca, 146 Mich 697, 701 (1906). The
indeterminate sentence act aims to provide greater protection to law-abiding
members of society by “convert[ing] bad citizens into good citizens” and
encouraging imprisoned offenders to reform themselves during incarceration.
Lorentzen, supra at 180; People v Cook, 147 Mich 127, 132 (1907). The act,
in part, provides:
“When a person is convicted for the first time for committing a

felony and the punishment prescribed by law for that offense may
be imprisonment in a state prison, the court imposing sentence
shall not fix a definite term of imprisonment, but shall fix a
minimum term, except as otherwise provided in this chapter. The
maximum penalty provided by law shall be the maximum sentence
in all cases except as provided in this chapter and shall be stated

by the judge in imposing the sentence.” MCL 769.8(1).
By adopting the constitutional amendment pertaining to indeterminate

sentencing, Michigan citizens intended that the indeterminate sentence act
permit trial courts some flexibility in tailoring a sentence to fit the individual
offender and the particular circumstances of his or her offense. Lorentzen,
supra at 180; In re Southard, 298 Mich 75, 82 (1941). In Lorentzen, the Court
vacated a defendant’s sentence because imposition of the 20-year sentence
prescribed for conviction of a nonviolent offense by a nonviolent offender
with no previous criminal record was “so excessive that it shock[ed] the
conscience.” Lorentzen, supra at 181. To determine the effectiveness of
indeterminate sentencing requires “consideration of the modern policy factors
underlying criminal penalties—rehabilitation of the individual offender,
society’s need to deter similar proscribed behavior in others, and the need to
prevent the individual offender from causing further injury to society.” Id. at
180.
B. Judicial Discretion and Appellate Review of

Indeterminate Sentences
Until 1972, the Michigan Supreme Court generally refused appellate review *The rule in
of a trial court’s sentencing decisions wherever the length of the sentence Tanner is
codified under
imposed was within the maximum sentence length set by statute. In People v the statutory
Tanner, 387 Mich 683 (1972), the Michigan Supreme Court limited the length sentencing
of an offender’s minimum sentence term to not more than two-thirds the guidelines at
statutory maximum sentence length for conviction of the offense.* This MCL 769.34
(2)(b).
marked a significant decrease in the amount of discretion a sentencing judge See Section
could exercise at sentencing proceedings. Before the Tanner “two-thirds 8.27 for more
rule,” judicial discretion in sentencing was nearly unfettered. In fact, before information.
Tanner was decided, the only limit placed on a judge’s sentencing discretion
was the prohibition against exceeding the statutory maximum term of
imprisonment designated for a particular felony conviction.
The Tanner rule was a response to the “plethora of cases involving sentences
with a period of but 30 days between minimum and maximum” and those
cases’ disregard for the true intent of the indeterminate sentence act. Tanner,
supra at 689. According to the Court, such a narrow window between the
minimum and maximum terms of a sentence infringed on the corrections
department’s exercise of jurisdiction and judgment over prisoners and their
conduct in prison. A difference of only thirty days between an offender’s
minimum and maximum terms eliminated the department’s ability to
effectively reward or penalize prisoners for their conduct. Id. at 689-690.
“Convinced as we are, that a sentence with too short an interval

between minimum and maximum is not indeterminate, we hold
that any sentence which provides for a minimum exceeding two-
thirds of the maximum is improper as failing to comply with the
indeterminate sentence act.” Id. at 690.
Section 8.2
The Michigan Supreme Court unequivocally authorized appellate review of a

trial court’s sentencing discretion in People v Coles, 417 Mich 523, 550
(1983). At the time Coles was decided in 1983, no sentencing guidelines
existed: subject only to the “two-thirds rule” in Tanner, trial courts could
sentence an offender to any term within the statutory minimum and maximum
set for the sentencing offense. People v Babcock, 469 Mich 247, 253 (2003).
After Coles was decided, an appellate court could review and remedy a
defendant’s sentence if the trial court’s exercise of its sentencing discretion
“shocked the conscience” of the reviewing court. Coles, supra at 550;
Babcock, supra at 253-254.
C. The Judicial Sentencing Guidelines
The first sentencing guidelines were designed by an advisory committee

appointed by the Michigan Supreme Court in 1979. The committee’s
guidelines—the first edition of the judicial sentencing guidelines—were
distributed to circuit court and recorder’s court judges in 1983.
“The[ judicial sentencing] guidelines were designed to reduce

disparity in sentencing from county to county and region to region
by mirroring the existing sentencing practices of judges across the
state at the time the guidelines were implemented. They were
developed using the results of research on sentencing patterns of
judges throughout Michigan, and attempt to capture the typical
sentence for similar types of offenses and offenders.” House
Legislative Analysis, SB 826, HB 5419, and HB 5398 (Revised
Second Analysis), September 23, 1998, 2.
*For a period of Pursuant to Administrative Order No. 1983-3, the judges were “invited, but
one year, not required, to use the guidelines for a period of one year, beginning May 1,
beginning
March 1, 1984,
1983.” 417 Mich cxxi (1983). Judges were “urged” to provide feedback to the
Administrative judicial sentencing committee on their use of the guidelines. The initial
Order No. 1984- guidelines were used by the courts on a voluntary basis until 1984, when the
1 mandated use Supreme Court mandated statewide use of the judicial guidelines and began
of the judicial
guidelines and requiring trial courts to submit data to the advisory committee to facilitate
completion of a review of the guidelines’ effectiveness.*
sentencing
form. 418 Mich
lxxx (1984).
Because the judicial guidelines were not backed by legislative action,
sentencing courts were not obligated to constrain themselves to the sentence
ranges recommended under the judicial guidelines. Babcock, supra at 254,
citing People v Hegwood, 465 Mich 432, 438 (2001). Use of the judicial
guidelines was “mandatory” to the extent that trial courts were required to
follow a procedure outlined in the judicial guidelines to “score” a crime based
on the circumstances surrounding the offense and the offender. Babcock,
supra at 254. Trial courts were also required by Supreme Court administrative
order to place on the record any reason for imposing a sentence that departed
from the range recommended under the judicial guidelines. Id. A second
edition of the judicial sentencing guidelines was released on October 1, 1988,
and this second edition—without further modification—remained in effect

until the Legislature enacted the statutory sentencing guidelines in December

1998. Administrative Order No. 1988-4, 430 Mich ci (1988).
After the statutory guidelines were enacted, the judicial sentencing guidelines
were rescinded by Administrative Order No. 1998-4. However, the judicial
sentencing guidelines remain in effect for offenses committed before January
1, 1999.
1. Appellate Review
After the judicial guidelines were promulgated and before the enabling
legislation for the statutory sentencing commission was enacted, the Coles
“shock the conscience” standard was replaced with the “principle of
proportionality” standard adopted by the Michigan Supreme Court in
People v Milbourn, 435 Mich 630, 636 (1990). Babcock, supra at 254.
The “proportionality” test required that a trial court impose a sentence
“proportionate to the seriousness of the circumstances surrounding the
offense and the offender.” Milbourn, supra at 636; Babcock, supra at 254.
“An error in scoring the judicial [sentencing] guidelines does not provide
a basis for appellate relief.” People v Walker (Robert), ___ Mich ___, ___
(2009), citing People v Raby, 456 Mich 487, 496 (1998).
2. Criticism of the Judicial Sentencing Guidelines
Revision of the judicial sentencing guidelines was prompted by criticism

that the judicial guidelines were both “excessively lenien[t]” and
“undu[ly] harsh[].” House Legislative Analysis, supra at 2. Critics of the
judicial guidelines pointed out that rather than conducting a fresh
examination of what a reasonable sentence might be for a particular crime,
the judicial guidelines “essentially codified existing practices” without
regard to the reasonableness of the sentence in light of the offense and the
offender. Id. Regardless of any shortcomings in the judicial sentencing
guidelines, the fact that the guidelines codified existing practices was
precisely what the guidelines had purported to do; the guidelines were
based on data gathered expressly for the purpose of determining what the
standard sentencing practices were in Michigan trial courts.
Revision of the judicial sentencing guidelines was also prompted by the

state’s increasing prison census. The judicial guidelines did not consider
possible consequences of their implementation on local correctional
resources and budgets, and Michigan’s prison overcrowding problem had
worsened despite an extensive prison construction program. Making the
best use of Michigan’s limited prison and jail space propelled the decision
that the Legislature should undertake “a comprehensive review” of the
existing guidelines and develop statutory sentencing standards for
imposing the penalties outlined in language first defined by the
Legislature itself. Id.

Section 8.2
D. The Statutory Sentencing Guidelines
With the enactment of 1994 PA 445, the Legislature established a nineteen-

member Sentencing Guidelines Commission. The Commission began
working in May 1995
“with the goal of developing sentencing guidelines that would

provide for the protection of the public, that considered offenses
involving violence against a person as more severe than other
offenses, and that were proportionate to the seriousness of the
offense and the offender’s prior criminal record.” House
Legislative Analysis, supra at 2.
The members of the Commission quickly agreed that the system on which the
judicial sentencing guidelines was based represented a fundamentally sound
approach to the issue and a basis from which the Commission would begin
formulating the sentencing guidelines it would recommend to the Legislature.
Maloney, Sentencing law symposium: The Michigan sentencing guidelines,
16 T M Cooley L Rev 13, 18-19 (1999). The Commission’s challenge was to
preserve the ideal of individualized sentencing without placing too stringent a
constraint on the largely unfettered discretion that then existed in the
sentencing courts. Maloney, supra at 21. In addition to its objective of
reducing disparity among criminal sentences, for the first time in Michigan’s
sentencing history, the Commission was further directed to address
sentencing guidelines applicable to habitual offenders. Maloney, supra at 18-
19.
1. Policy Objectives, Organization, and Content
The Commission’s sentencing guidelines incorporated the policy

initiatives enumerated by the Legislature:
• Violent offenses and violent offenders should be treated more

severely than nonviolent offenses and nonviolent offenders.
• Sentences should be proportionate to both the seriousness of the

offense and the offender’s prior criminal record.
• There should exist a standard governing a trial court’s imposition

of a sentence that represents a departure from the sentence
recommended under the sentencing guidelines (the “substantial
and compelling reason” standard articulated in People v Fields,
448 Mich 58, 62-68 (1995)).
• To alleviate prison overcrowding, there should exist mandatory

intermediate sanctions when the recommended guidelines range is
less than 18 months. Absent a substantial and compelling reason
to depart in those cases, a sentencing judge would be prohibited
from sentencing an offender to prison when the recommended
range called for intermediate sanctions. Maloney, supra at 18–19.

According to the Michigan Supreme Court, the statutory sentencing

guidelines represented
“a comprehensive sentencing reform. The evident

purposes included reduction of sentencing disparity,
elimination of certain inappropriate sentencing
considerations, acceptance of this Court’s Tanner rule,
encouragement of the use of sanctions other than
incarceration in the state prison system, and resolution of a
potential conflict in the law.” People v Garza, 469 Mich
431, 434-435 (2003) (footnotes omitted).
The statutory guidelines were enacted by 1998 PA 317 and are contained
in chapter XVII of Michigan’s Code of Criminal Procedure, MCL 777.1
et seq. The legislative sentencing guidelines divide more than 700 crimes
into six “offense categories” or “crime groups” (e.g., crimes against a
person, crimes against property, crimes involving a controlled substance,
etc.). The crimes are further divided in order of descending severity into
“crime classes,” which are represented by the letters “A” through “H” and
by “M2,” a separate crime class designation reserved for second-degree
murder.
General provisions applicable to the guidelines are contained in MCL

777.1 to 777.6; these provisions are discussed in Section 8.3. The specific
felonies to which the sentencing guidelines apply are enumerated in MCL
777.11 to 777.19, and these offenses are listed both alphabetically and in
order of MCL number in Appendix F. MCL 777.21 and 777.22 contain the
general scoring instructions for the statutory sentencing guidelines and are
discussed in Section 8.5. Scoring each offense variable is detailed in MCL
777.31 to 777.49a (discussed in Section 8.6), and scoring the prior record
variables is found in MCL 777.50 to 777.57 (discussed in Section 8.5).
Sentencing grids for each crime class are in MCL 777.61 to 777.69 and
may be found in Appendix B.
2. Appellate Review
Because the statutory sentencing guidelines are a product of legislative *Appellate

action, a sentencing court’s discretion for departure from the guidelines is review of a
limited to the circumstances of departure contained in the statutory sentence
imposed under
language. MCL 769.34(3); Hegwood, supra at 439; Babcock, supra at the statutory
255. Appellate review of sentences under the statutory guidelines* is guidelines is
governed by a two-part inquiry: discussed in
detail in Section
• whether the trial court’s sentencing decision is within the 8.52.
appropriate guidelines range (if so, and absent an error in scoring

or inaccurate information on which the court relied, the sentence
is presumptively proportionate to the offense and the offender); or

Section 8.2
*See Sections • if the trial court’s sentencing decision is not within the guidelines
8.48-8.51 for a range, whether the trial court has articulated a “substantial and
comprehensive
discussion of
compelling reason” for the departure.* Babcock, supra at 261–
sentence 270; MCL 769.34(3), (10), and (11).
departures.
*See Section A “substantial and compelling reason”* justifying a trial court’s departure
8.48(A). from the recommended minimum sentence under the sentencing
guidelines must satisfy a three-part test:
• the reason must be based on factors that are objective and

verifiable;
• the reason must “keenly” or “irresistibly” grab the reviewing

court’s attention; and
• the reason must be of “considerable worth” in deciding the length

of the defendant’s sentence. Babcock, supra at 257-258; Fields,
supra at 58, 62, 67-68.
*See Section Departures may not be based on a defendant’s gender, race, ethnicity,
8.48(B). alienage, national origin, legal occupation, lack of employment,
representation by appointed or retained counsel, appearing in propria
persona, or religion.* MCL 769.34(3)(a). In addition, departures may not
be based on an offender’s conduct or criminal history already taken into
account by an offense variable or prior record variable unless the court
explains why the variable does not adequately account for the conduct or
history. MCL 769.34(3)(b).
*See Section Although it is no longer an appellate court’s primary consideration,

8.29 for a proportionality* remains relevant to appellate review of a trial court’s
detailed sentencing decision. When a trial court departs from the range
discussion of
proportionality.
recommended under the statutory guidelines, the departure must be
proportionate to the circumstances of the offense and the offender.
Babcock, supra at 255-256 n 10.
*Pursuant to The legislative sentencing guidelines apply to offenses committed on or

Administrative after January 1, 1999. MCL 769.34(2). The judicial guidelines continue to
Order No. 1998- apply to offenses committed before January 1, 1999 (cases involving the
4, 459 Mich
clxxv (1998).
judicial guidelines now occasionally arise in an appellate context).* MCL
769.34(1); People v Reynolds, 240 Mich App 250, 254 (2000).
Note: “An error in scoring the judicial [sentencing]

guidelines does not provide a basis for appellate relief.”
People v Walker (Robert), ___ Mich ___, ___ (2009),
citing People v Raby, 456 Mich 487, 496 (1998).

Part II—Scoring the Statutory Sentencing Guidelines
8.3 Offenses to Which the Statutory Guidelines Apply
In general, the statutory sentencing guidelines apply only to felony offenses

for which the penalty prescribed is an indeterminate sentence, and the
sentencing court retains discretion in imposing an offender’s sentence. That
is, the guidelines are not applicable to offenses for which the applicable
statute establishes a mandatory determinate penalty or a mandatory penalty of
life imprisonment for conviction of the offense. MCL 769.34(5). Application
of the guidelines with regard to habitual offenders, repeat drug offenders,
controlled substance convictions before March 1, 2003, and probation
violations are discussed in detail in later sections of the monograph.
Specifically, the statutory sentencing guidelines apply to felony offenses

listed in MCL 777.11 to 777.19 that were committed on or after January 1,
1999. MCL 769.34(2). The statutory sections listing the felony offenses to
which the guidelines apply contain brief descriptions of the felonies listed
there “for assistance only.” MCL 777.6; MCL 777.11 to 777.19. The language
contained in the statute defining the felony offense itself governs application
of the sentencing guidelines. MCL 777.6.
Application of the statutory sentencing guidelines is not affected by the date

of conviction or the date of sentencing—the statutory language emphasizes
only “the date the crime was committed.” People v Martin, 257 Mich App
457, 459 (2003); People v Gonzalez, 256 Mich App 212, 227 (2003); People
v Reynolds, 240 Mich App 250, 253-254 (2000). MCL 769.34(2) states, in
part:
“Except as otherwise provided in this subsection or for a departure

from the appropriate minimum sentence range provided for under
subsection (3), the minimum sentence imposed by a court of this
state for a felony enumerated in part 2 of chapter XVII committed
on or after January 1, 1999 shall be within the appropriate sentence
range under the version of those sentencing guidelines in effect on
the date the crime was committed.”
MCL 769.34(2) clearly anticipates the dynamic quality of the statutory

sentencing guidelines by requiring that a court sentence an offender to the
minimum sentence range recommended “under the version of th[e]
sentencing guidelines in effect on the date the crime was committed.”
A. Offense Category (Crime Group)
All felony offenses to which the sentencing guidelines apply fall into one of *Crime classes
six offense categories. (Appendix A contains separate lists of the felonies are discussed in
subsection (B),
contained in each crime group in order of severity as designated by each below.

Section 8.3
offense’s “crime class.”*) The offense category, or “crime group,” to which

an offense belongs will determine which offense variables must be scored.
The six offense categories are defined in MCL 777.5(a)-(f) as:
• crimes against a person (“person”),
• crimes against property (“property”),
• crimes involving a controlled substance (“CS”),
• crimes against public order (“pub ord”),
• crimes against public trust (“pub trst”), and
• crimes against public safety (“pub saf”).
B. Crime Class
*An offense’s Within each “crime group,” all offenses to which the guidelines apply are
“crime class” further categorized by the seriousness of the offense. This “gradation” of
determines
which grid
offense seriousness is indicated by the offense’s “crime class.”* An offense’s
applies to the “crime class” is designated by the letters “A” through “H” and “M2.” “M2”
sentencing (second-degree murder) and “A” represent the most serious felony offenses,
offense. MCL while the letters “B” through “H” represent the remaining felony offenses in
777.21(1)(c).
Sentence grids decreasing order of their seriousness.
are included in
Appendix B. An offense’s “crime class” roughly corresponds to a maximum term of
imprisonment for offenses in the same class:
Class Sentence
A Life
B 20 years’ imprisonment
C 15 years’ imprisonment
D 10 years’ imprisonment
E 5 years’ imprisonment
F 4 years’ imprisonment
G 2 years’ imprisonment
H Jail or other intermediate sanction
For the most part, the actual statutory maximum term of imprisonment for a
specific offense is consistent with the “crime class/maximum sentence” chart
printed above. There are offenses that stray from this “standard,” however.
Apparently, the statutory maximum term of imprisonment was used to divide
the felonies into discrete “crime classes” so that most felony offenses included
in a particular “crime class” share the same statutory maximum term of
imprisonment. There is no legislative authority for the division of felonies into
crime classes; therefore, there is no prohibition against assigning a felony to

a “crime class” that is inconsistent with the statutory maximum for that felony
offense. Rather, the statutory maximum, as it is stated in the actual language
of the statute, governs the upper limit of punishment possible for conviction
of a particular offense. MCL 777.6.
For example, MCL 750.145c(3) and MCL 409.122(3) are both “crimes *MCL
against a person,” and both are designated as class D felonies.* MCL 777.16g 750.145c(3)
prohibits
and 777.14b. According to the “crime class/maximum sentence” chart above, distributing,
which corresponds to language found in legislative documents discussing the promoting, or
statutory guidelines, class D felonies are crimes for which a maximum financing child
sentence of ten years’ imprisonment may be appropriate. House Legislative sexually
abusive activity
Analysis, SB 826, HB 5419, and HB 5398 (Revised Second Analysis), or materials.
September 23, 1998, 3; Senate Fiscal Analysis, SB 826, HB 5398, and HB MCL
5419, October 23, 1998, 5. However, the maximum term of imprisonment 409.122(3)
prohibits
authorized by MCL 750.145c(3) is only seven years, while the maximum term employing
authorized by MCL 409.122(3) is 20 years. In neither of the two statutes is the children in a
statutory maximum ten years as the designation “class D” suggests. While the child sexually
“crime class” designation in most cases will correspond to the maximum abusive activity.
sentences listed in the chart above, the two offenses discussed here exemplify
the directive of MCL 777.6: the express language of the statute defining the
offense itself governs application of the sentencing guidelines.
C. Attempts
The sentencing guidelines apply to attempted crimes if the crime attempted is

a felony offense. MCL 777.19(1). The guidelines do not apply to an attempt
to commit a class H offense. Id.
An “attempt” to commit an offense falls within the same offense category or

“crime group” as the offense itself. MCL 777.19(2). The “crime class” for an
“attempt” is determined by the class of the offense attempted:
• if the attempted offense is in class A, B, C, or D, the “attempt” is

a class E offense. MCL 777.19(3)(a).
• if the attempted offense is in class E, F, or G, the “attempt” is a

class H offense. MCL 777.19(3)(b).
8.4 Presentence Investigation Report (PSIR)
A court must use a presentence report when sentencing a defendant for a

felony offense. MCL 771.14(1); People v Hemphill, 439 Mich 576, 579
(1992). Use of a PSIR in misdemeanor cases is discretionary. MCL 771.14(1).
“The presentence report, mandatory for felony cases in Michigan

since 1931, allows the court to make an informed judgment as to
possibilities for rehabilitation, and to effectively utilize sentencing
alternatives. The presentence report has been widely regarded as
Section 8.4
an effective method of supplying information essential to an

informed sentencing decision.” People v Lee, 391 Mich 618, 635
(1974).
The presentence investigation report is a tool by which the sentencing court

gathers information important to the court’s ability to fashion a sentence
appropriate to the criminal and to the circumstances under which the crime
was committed. Morales v Michigan Parole Bd, 260 Mich App 29, 45-46
(2003). Long before the statutory sentencing guidelines were enacted, the
PSIR was intended to ensure that criminal sentences were tailored both to the
offense committed and the offender who committed it. People v Miles, 454
Mich 90, 97 (1997), citing People v Triplett, 407 Mich 510, 513-515 (1980).
A. PSIR Content Required for all Felony Offenses
*The The information that must be included in a PSIR is addressed by both statute
Department of and court rule.* MCL 771.14(1) indicates that a PSIR is a probation officer’s
Corrections
requires that an
written report of information obtained through the officer’s inquiry into the
offender’s PSIR defendant’s “antecedents, character, and circumstances.” Notwithstanding the
comply with its specific language found in MCL 771.14(2)(a)-(g) (discussed below), the
operating statute provides little guidance for completing the section of an offender’s
procedures and
policy PSIR in which his or her “antecedents, character, and circumstances” are
directives. summarized. Language found in the applicable court rule, however, contains
See Appendix very specific guidance about the information required in such a section. These
H.
court rule provisions are discussed in subsection (C), below.
MCL 771.14(2)(a)-(d) and equivalent provisions of MCR 6.425(A) detail four

items required in a PSIR for all felony offenses:
• Based on factual information contained in the PSIR, an evaluation

of and prognosis for the offender’s community adjustment. MCL
771.14(2)(a); MCR 6.425(A)(10).
• A written victim impact statement if requested by a victim. MCL

771.14(2)(b); MCR 6.425(A)(7).
• A written recommendation for a specific disposition. The

recommended disposition should be based on the evaluation
referred to above. The PSIR should also contain “other
information as prescribed by the assistant director of the
department of corrections in charge of probation.” MCL
771.14(2)(c); MCR 6.425(A)(11).
• A statement from the prosecuting attorney regarding whether

consecutive sentencing is mandatory or discretionary for the
offender’s sentencing. MCL 771.14(2)(d); MCR 6.425(A)(9).

B. PSIR Content Required for Felony Offenses Under the

Sentencing Guidelines
In addition to the information contained in the subsection above, the PSIR of

an offender being sentenced for a felony offense under the statutory
sentencing guidelines in chapter XVII (MCL 777.11 to 777.19) must include
the specific sentence range recommended under the guidelines based on the
offender’s prior record variable and offense variable scores.
Note: Until recently, an offender’s scores were calculated on a *Administra-tive

form known as a “Sentencing Information Report” or “SIR.” Order 1988-4,
as amended,
SCAO’s SIR form has been discontinued, and sentencing courts effective July
are no longer required to submit scoring information to SCAO.* 13, 2005. 473
Mich xviii
After points are assessed for the prior record variables and the appropriate (2005).
offense variables, the point totals—the “prior record variable level” and the
“offense variable level”—determine the offender’s placement on the
appropriate sentence grid.
In addition to the scoring of an offender’s prior record and offense variables,

an offender’s PSIR must also include:
 The appropriate sentence grid* showing the recommended minimum *Sentence grids
sentence range for each conviction that could be subject to imposition are found in part
6 of chapter
of a mandatory or discretionary consecutive sentence. MCL XVII. They are
771.14(2)(e)(i). attached to this
monograph in
 Unless consecutive sentences are required or permitted for a Appendix B.
conviction, the sentence grid showing the recommended minimum
sentence range for the crime having the highest crime class. MCL
771.14(2)(e)(ii).
 Unless a conviction is subject to consecutive sentencing, the
computation of OV and PRV scores that determined the recommended
minimum sentence range for the crime having the highest crime class.
MCL 771.14(2)(e)(iii).
 A statement regarding the applicability of intermediate sanctions.

MCL 771.14(2)(e)(iv).
 The recommended sentence. MCL 771.14(2)(e)(v).
C. PSIR Content Defined by Court Rule
The court rule governing a probation officer’s compilation of an offender’s

PSIR requires that the probation officer verify material information included
in the report. MCR 6.425(A). The statute governing PSIR content states

Section 8.4
simply that an offender’s PSIR must include a written report of the offender’s
“antecedents, character, and circumstances.” MCL 771.14(1). According to
MCR 6.425(A), a PSIR is a succinct and written report of the probation
officer’s investigation into the defendant’s background and character. In other
words, a PSIR is a succinct and written report of the probation officer’s
investigation into the defendant’s “antecedents, character, and
circumstances.” Depending on the circumstances of the offense and the
offender, a PSIR must include:
“(1) a description of the defendant’s prior criminal convictions and

juvenile adjudications,
“(2) a complete description of the offense and the circumstances

surrounding it,
“(3) a brief description of the defendant’s vocational background

and work history, including military record and present
employment status,
“(4) a brief social history of the defendant, including marital

status, financial status, length of residence in the community,
educational background, and other pertinent data,
“(5) the defendant’s medical history, substance abuse history, if

any, and, if indicated, a current psychological or psychiatric
report,
“(6) information concerning the financial, social, psychological,

or physical harm suffered by any victim of the offense, including
the restitution needs of the victim,
***
“(8) any statement the defendant wishes to make,
***
“(12) any other information that may aid the court in sentencing.”
MCR 6.425(A).
D. PSIR Content Required in Limited Situations
Crimes involving alcohol or a controlled substance. If an offender is to be

sentenced for a felony or a misdemeanor offense involving the illegal
delivery, possession, or use of alcohol or a controlled substance, the PSIR
must contain a statement, if applicable, about whether the offender is licensed
or registered under the public health code (MCL 333.16101 to 333.18838).
MCL 771.14(2)(f). See also MCL 769.1(14).

Diagnostic opinions. Unless a diagnostic opinion is exempt from disclosure

under MCL 771.14(3), available opinions must be included in an offender’s
PSIR. MCL 771.14(2)(g).
Juveniles. Before a court imposes an adult sentence on a juvenile, the *Formerly the
Department of Human Services* or county juvenile agency must submit a Family
Independence
report required by MCL 771.14a. See Miller, Juvenile Justice Benchbook: Agency.
Delinquency & Criminal Proceedings—Revised Edition (MJI, 2003-April
2009), Section 21.3, for additional information.
E. PSIR Must Be “Reasonably Updated”
The PSIR on which a sentencing court relies must be “reasonably updated.”

Hemphill, supra at 580; Triplett, supra at 515.
A defendant may not waive the requirement that a presentence report be

utilized at his or her sentencing hearing. Hemphill, supra at 581. However, a
defendant may waive the right to an updated PSIR at the defendant’s
resentencing as long as the waiver is made intelligently, understandingly, and
voluntarily. Id. at 582. The prosecution may also waive completion of an
updated PSIR at a resentencing hearing. Where a sentencing court relies on a
defendant’s previously prepared PSIR when resentencing the defendant, the
PSIR must be accurate or believed to be accurate by the parties. Id. A
defendant may not waive preparation of an updated PSIR for resentencing if
the information contained in the existing PSIR is “manifestly outdated.” Id.
A PSIR that is “several years old” is not “reasonably updated.” Hemphill,

supra at 581; People v McDonald, 99 Mich App 150, 152–153 (1980); People
v Bruce, 102 Mich App 573, 580 (1980). A PSIR that was completed “several
months earlier” in connection with an offense unrelated to the sentencing
offense is not “reasonably updated.” People v Anderson, 107 Mich App 62,
66-67 (1981); People v McKeever, 123 Mich App 533, 539–541 (1983). Even
a PSIR only five months old may not be adequately up-to-date “where there
were significant allegations that the defendant’s circumstances had changed
during the interim.” Hemphill, supra at 581, citing People v Crook, 123 Mich
App 500, 503 (1983).
Updated PSIRs may not be necessary where a sentencing court has no

discretion in the length of the sentence imposed. Hemphill, supra at 581;
People v Foy, 124 Mich App 107, 110-112 (1983). The requirement that an
updated PSIR be utilized at a defendant’s sentencing may be satisfied by the
submission of a supplementary report. Hemphill, supra at 581; People v Hart,
129 Mich App 669, 674 (1983).

Section 8.5
8.5 Scoring an Offender’s Prior Record Variables (PRVs)

*Sentencing MCL 777.21 provides in detail the method by which an offender’s
grids are found recommended minimum sentence range is determined using the offender’s
in MCL 777.61
to 777.69. Each
prior record variable (PRV) and offense variable (OV) scores. Each offense
grid is also variable to be scored is determined by the “crime group” to which the
included in sentencing offense belongs. But all seven prior record variables are scored
Appendix B. for felony offenses to which the guidelines apply, without regard to the
sentencing offense’s “crime group.” MCL 777.21(1)(b). The total number of
points assessed for the seven PRVs constitutes the offender’s “PRV level,”
which is represented by the horizontal axis on each sentencing grid.*
Each PRV consists of several statements to which a specific number of points

is assigned. The statements appearing in each of the seven PRVs quantify the
specific sentencing characteristic addressed by each individual PRV. For
example, PRV 1 targets an offender’s previous high severity felony
convictions and assigns a point value to these prior convictions. The point
value increases according to the number of previous qualifying convictions.
*Specific For purposes of scoring an offender’s PRVs, a “conviction” includes an

“offender assignment to youthful trainee status under MCL 762.11 et seq. and a
statuses” are
discussed in
conviction set aside under MCL 780.621 to 780.624. MCL 777.50(4)(a).*
Section 8.5(H). Similarly, a “juvenile adjudication” for purposes of an offender’s PRV scores
includes an adjudication set aside under MCL 712A.18e or expunged. MCL
777.50(4)(c). See People v Smith, 437 Mich 293, 302-304 (1991), where the
Court explained the propriety of considering an adult defendant’s expunged
juvenile record at the adult defendant’s sentencing hearing. The Court noted
that the purpose of automatic expungement was not to protect the adult
offender from any criminal consequences of his or her juvenile record, but to
eliminate the social or civil stigma of delinquency and the economic
disabilities that could accompany a record of juvenile delinquency.
A. Ten-Year Gap Requirement for Prior Convictions and

Adjudications
MCL 777.50 proscribes using a conviction or a juvenile adjudication when

scoring PRVs 1 through 5 if the conviction or adjudication occurred more than
ten years before the sentencing offense. Specifically, MCL 777.50(1)
provides:
*Discharge from “In scoring prior record variables 1 to 5, do not use any conviction
the jurisdiction or juvenile adjudication that precedes a period of 10 or more years
of the court or
the department
between the discharge* date from a conviction or juvenile
of corrections. adjudication and the defendant’s commission of the next offense
MCL resulting in a conviction or juvenile adjudication.”
777.50(4)(b).
To apply MCL 777.50(1), determine the length of time between the discharge
date of the conviction or juvenile adjudication immediately preceding the
commission date of the sentencing offense. If the time span is ten years or
more, that conviction or juvenile adjudication—and any convictions or

adjudications that occurred earlier—must not be counted when scoring the
offender’s PRVs. MCL 777.50(2). If the time span between the commission
date of the offender’s sentencing offense and the discharge date of the
offender’s most recent conviction or juvenile adjudication is less than ten
years, that prior conviction or adjudication must be counted in scoring the
offender’s PRVs.
If the offender’s most recent conviction or adjudication must be counted in

scoring his or her PRVs, and if the offender has additional prior convictions
or juvenile adjudications, determine the length of time between the
commission date of the prior conviction or adjudication first scored and the
discharge date of the next earlier conviction or adjudication. If the time span
equals or exceeds ten years, that conviction or adjudication may not be
counted. If the time span is less than ten years, that conviction or adjudication
may be counted in scoring the offender’s PRVs. Use the process described
above until a time span equal to or greater than ten years separates the
discharge date of an earlier conviction or adjudication from the commission
date of the next conviction or adjudication or until no previous convictions or
adjudications remain. MCL 777.50(2).
It is important to document both the commission date and the discharge date
of each prior conviction or juvenile adjudication. When working backward
from the commission date of the sentencing offense, the discharge date of the
most recent conviction or adjudication is required. If the most recent
conviction or adjudication qualifies as a previous conviction under MCL
777.50, working backward from that conviction or adjudication requires the
scorer to begin with that conviction’s commission date—not the discharge
date by which its relationship to the sentencing offense was first measured.
If a discharge date is not available, determine the date by adding the amount
of time the defendant was placed on probation or the length of the minimum
term of incarceration to the date the defendant was convicted—not the date the
defendant was sentenced—and use that date as the discharge date. MCL
777.50(3).
Note: Frequent challenges to the constitutionality of an offender’s

prior convictions or adjudications arise at sentencing when a
defendant claims that one or more of the prior convictions or
adjudications counted in scoring the PRVs were obtained without
the defendant having had the benefit of counsel. The constitutional
validity of a defendant’s prior convictions or adjudications as they
relate to the defendant’s PRV level is discussed in Section 8.21.
PRVs 1 through 5 indicate that the convictions and adjudications

contemplated for use in scoring these variables must be convictions and
adjudications entered before the commission date of the sentencing offense.
MCL 777.51 to 777.55. Where the commission date of the sentencing offense
fell after the commission date of a previous offense but before the date on

Section 8.5
which the defendant entered a guilty plea to the previous offense, the
conviction (plea) entered after the commission date of the sentencing offense
is not a “prior conviction” for purposes of scoring PRV 5. People v Hammond,
unpublished opinion per curiam of the Court of Appeals, decided September
18, 2003 (Docket No. 231540). See also People v Reyna, 184 Mich App 626,
633-634 (1990) (the date of conviction is independent of and unaffected by
the date of sentencing for purposes of determining whether an offender’s prior
conviction qualifies in scoring an offender’s PRVs).
*The range of Despite the range of offense dates* listed in the complaint against the
dates was defendant, where the evidence at trial established that the earliest date on
broad enough
to have made
which the defendant committed the sentencing offense was more than ten
the prior years after the defendant’s discharge from probation for an earlier offense, the
conviction earlier offense may not be counted as a “prior conviction” for purposes of
countable if the scoring the defendant’s prior record variables. People v Ray, unpublished
evidence had
established a opinion per curiam of the Court of Appeals, decided September 9, 2003
commission (Docket No. 240843).
date nearer to
the earliest date
indicated by the
Note: As of the publication date of this monograph, published
range of dates. appellate opinions discussing scoring issues under the legislative
sentencing guidelines were limited. To provide guidance to users
of this monograph, unpublished opinions discussing the legislative
sentencing guidelines and published opinions discussing the prior
judicial sentencing guidelines are included where relevant.
B. Assignment to “Youthful Trainee” Status Under the PRVs
*Youthful Under the express language of the statutory sentencing guidelines, a

trainee status is defendant’s previous assignment to “youthful trainee” status* is a “prior
discussed
further in
conviction” for purposes of scoring a defendant’s PRVs. MCL
Section 8.43. 777.50(4)(a)(i). The plain language in MCL 777.50(4)(a)(i) conflicts with the
Court of Appeals’ disposition of this issue in a case governed by the judicial
sentencing guidelines. In People v Garner, 215 Mich App 218, 220 (1996),
the Court ruled that the only express statutory language in effect at the time—
MCL 762.14(2)—clearly prohibited using a defendant’s previous youthful
trainee status as a prior conviction for scoring purposes.
Although the youthful trainee act contained the same information then as it
does now, the judicial sentencing guidelines defined “conviction” as “an
adjudication of guilt in an adult criminal matter.” Garner, supra at 220-221.
Because the statutory sentencing guidelines define “conviction” to include
assignment to the status of “youthful trainee,” a sentencing court must now
count a defendant’s previous assignment to the status of youthful trainee as a
prior conviction for purposes of scoring the defendant’s PRVs. However, the
statutory sentencing guidelines preserve the civil protection provided by MCL
762.14(2) and substantiate the conditional protection provided in a
subsequent provision of the youthful trainee act regarding disclosure of
records involving the prior criminal charge. MCL 762.14(4).

C. PRV 1—Prior High Severity Felony Convictions
To score PRV 1, first determine if the defendant has any previous convictions
that qualify as “prior high severity felony convictions.” A “prior high severity
felony conviction” is:
• a conviction entered before the commission date* of the *A qualifying

sentencing offense, “prior high
severity felony
conviction”
• for a crime listed in class M2, A, B, C, or D, or must satisfy the
10-year gap
• for a felony under federal law or the law of another state that requirements of
corresponds to a crime listed in class M2, A, B, C, or D, or MCL 777.50, as
discussed
• for a felony that is not listed in any crime class (M2, A, B, C, D, above in
E, F, G, or H) that is punishable by a maximum term of Section 8.5(A).
imprisonment of 10 years or more, or
• for a felony under federal law or the law of another state that does
not correspond to a crime listed in any class (M2, A, B, C, D, E, F,
G, or H) that is punishable by a maximum term of imprisonment
of 10 years or more. MCL 777.51(2).
If the defendant has previous convictions that qualify under PRV 1, next
determine which one or more of the statements addressed by the variable
apply to the offender’s previous high severity felony convictions and assign
the point value indicated by the applicable statement with the highest number
of points. MCL 777.51(1).
Points PRV 1—Number of prior high severity convictions

75 The offender has 3 or more prior high severity convictions.
50 The offender has 2 prior high severity convictions.
25 The offender has 1 prior high severity conviction.
0 The offender has no prior high severity convictions.
1. Case Law Under the Statutory Guidelines
For purposes of scoring an offender’s prior record variables, “another

state” does not include foreign states. People v Price, 477 Mich 1, 5
(2006) (the defendant’s previous conviction in Canada was improperly
counted for purposes of PRV 1). Language used in MCL 777.51(2)
defines a “prior high severity felony conviction” as “a conviction for a
crime listed in offense class M2, A, B, C, or D or for a felony under a law
of the United States or another state corresponding to a crime listed in
offense class M2, A, B, C, or D[.]” (Emphasis added.) Price, supra at 4.
According to the Price Court: “The common understanding of ‘state’ in
Michigan law is a state of the United States, not a province of Canada and
not a foreign state. Obviously, Michigan is one of the states that comprise
the United States. Thus, the most obvious meaning of ‘another state’ in

Section 8.5
this context is one of the states, other than Michigan, that comprise the
United States. A Canadian conviction is not ‘a felony under a law of the
United States or another state[.]’” Price, supra at 4-5.
Where a defendant argued that he should not have been assessed 25 points
for PRV 1 when it was unclear whether the defendant’s previous
conviction in California for second-degree robbery was a “high severity
felony” under Michigan law, the Court observed:
“[O]ur review of the California and Michigan definitions

of robbery suggest, without more facts, that defendant’s
California second-degree robbery conviction is akin to an
unarmed robbery conviction in Michigan. Accordingly, in
the absence of evidence to the contrary, it appears that the
trial court correctly scored PRV 1.” People v Stewart,
unpublished opinion per curiam of the Court of Appeals,
decided September 18, 2003 (Docket No. 240376).
Unarmed robbery under Michigan law, MCL 750.88, is a class C felony,

and class C felonies are among the list of offenses under Michigan law,
federal law, or the law of another state to be counted as a “prior high
severity felony conviction” for purposes of scoring PRV 1. MCL
777.51(2).
2. Relevant Case Law Under the Judicial Guidelines
More than one “prior high severity conviction” arising from the same
judicial proceeding may be counted when scoring PRV 1. In a case
decided under the judicial sentencing guidelines, the Court of Appeals
affirmed the defendant’s score of 50 points for PRV 1 where both
qualifying previous convictions resulted from a single judicial
proceeding. People v Whitney, 205 Mich App 435, 436 (1994). In refuting
the defendant’s argument that he should be assessed points under PRV 1
for only one of the multiple convictions resulting from a single judicial
proceeding, the Court emphasized that the defendant’s proposal would
undermine the purpose of PRV 1, which is to accurately reflect an
offender’s previous criminal history. Whitney, supra at 436. According to
the Court:
“We can think of no sensible reason why a person who is

convicted of multiple crimes at one judicial proceeding,
whether those crimes were committed during a single
criminal episode or not, should receive the same score
under PRV-1 as a person who committed only one crime
during a single criminal act.” Id. at 436-437.
D. PRV 2—Prior Low Severity Felony Convictions
To score PRV 2, determine whether the offender has any convictions that
qualify as “prior low severity felony convictions” under this variable. A “prior
low severity felony conviction” is:
• a conviction entered before the commission date* of the *A qualifying

sentencing offense, “prior low
severity felony
conviction”
• for a crime listed in class E, F, G, or H, or must satisfy the
10-year gap
• for a felony under federal law or the law of another state that requirements of
corresponds to a crime listed in class E, F, G, or H, or MCL 777.50, as
discussed
• for a felony that is not listed in any crime class (M2, A, B, C, D, above in
E, F, G, or H) that is punishable by a maximum term of Section 8.5(A).
imprisonment of less than 10 years, or
• for a felony under federal law or the law of another state that does
not correspond to a crime listed in any class (M2, A, B, C, D, E, F,
G, or H) that is punishable by a maximum term of imprisonment
of less than 10 years. MCL 777.52(2).
If the defendant has previous convictions to which PRV 2 applies, determine

which of the statements listed in the variable apply to those prior low severity
felony convictions and assign the point value corresponding to the applicable
statement having the highest number of points. MCL 777.52(1).
Points PRV 2—Number of prior low severity convictions

30 The offender has 4 or more prior low severity convictions.
20 The offender has 3 prior low severity convictions.
10 The offender has 2 prior low severity convictions.
5 The offender has 1 prior low severity conviction.
0 The offender has no prior low severity convictions.
For purposes of scoring an offender’s prior record variables, “another

state” does not include foreign states. People v Price, 477 Mich 1, 5
counted for purposes of PRV 1). Relevant language used in PRV 2 is the
same as the language used in PRV 1—the variable at issue in Price. MCL
777.52(2) defines a “prior low severity felony conviction” as “a
conviction for a crime listed in offense class E, F, G, or H or for a felony
under a law of the United States or another state corresponding to a crime
listed in offense class E, F, G, or H[.]” (Emphasis added.) According to
the Price Court: “The common understanding of ‘state’ in Michigan law
is a state of the United States, not a province of Canada and not a foreign
state. Obviously, Michigan is one of the states that comprise the United
States. Thus, the most obvious meaning of ‘another state’ in this context
is one of the states, other than Michigan, that comprise the United States.
A Canadian conviction is not ‘a felony under a law of the United States or
another state[.]’” Price, supra at 4-5.
A defendant’s previous misdemeanor conviction for “joyriding” under

MCL 750.414 qualifies as a “prior low severity felony conviction” for
Section 8.5
purposes of scoring PRV 2. People v Wallace, unpublished opinion per

curiam of the Court of Appeals, decided June 5, 2003 (Docket No.
238355). In Wallace, the defendant argued that his previous conviction
could not be properly counted under PRV 2 because the statute defined the
prohibited conduct as a misdemeanor. Wallace, supra. The Court
acknowledged that the statutory language of MCL 750.414 indicated that
conduct in violation of the statute was a misdemeanor punishable by no
more than two years of imprisonment, but notwithstanding that language,
the Court noted that MCL 750.414 was expressly listed in MCL 771.16u
as a felony offense to which the statutory guidelines applied. Wallace,
supra. The Court further pointed to MCL 771.16u’s characterization of
MCL 750.414 as a class H offense, a crime class specifically identified
among the convictions that qualify as “prior low severity felony
convictions” under PRV 2. Wallace, supra; MCL 777.52.
*PRV 6 deals It is permissible to use the same previous conviction for purposes of
with an scoring PRV 2 and PRV 6.* People v Vonins (After Remand), 203 Mich
offender’s App 173, 176 (1993). Although Vonins was decided under the judicial
relationship to
the criminal
sentencing guidelines, the version of PRV 2 then in effect addressed the
justice system same prior conduct as does the version of PRV 2 now in effect under the
at the time the statutory sentencing guidelines. Vonins, supra at 176; MCL 777.52. In
sentencing addition, with the exception of the judicial guidelines’ inclusion of
offense was charges pending against an offender at the time the sentencing offense
committed. See
was committed, the conduct addressed by the version of PRV 6 in effect
Section 8.5(H),
below. at the time Vonins was decided is nearly equivalent to the conduct
described in PRV 6 under the statutory guidelines. Vonins, supra at 176;
MCL 777.56.
In Vonins, the defendant argued that the trial court’s assessment of points
under PRV 2 for the defendant’s previous controlled substance offense
conviction precluded the court from using that same conviction to assess
him points under PRV 6. Vonins, supra at 176. The Court of Appeals
explained that PRV 6 was a separate category that addressed a situation
different from the situation addressed in PRV 2:
“PRV 2 provides for the assessment of points for every

prior low-severity felony conviction, with an increase in
the number of points in correlation to the number of such
convictions. PRV 6 provides for the assessment of points
if, at the time of the instant offense, the defendant had a
relationship with the criminal justice system involving
bail, bond, pretrial diversion, or the Holmes Youthful
Trainee Act.
“Additional points are to be assessed under PRV 6 when

there is a ‘post-conviction relationship,’ such as being on
probation or parole when the instant offense occurred
within six months of termination of probation or parole.”
Vonins, supra at 176-177.

Not all prior low severity convictions will qualify under more than one
PRV as did the conviction in Vonins. A defendant’s prior low severity
conviction is appropriately counted under PRV 2 and PRV 6 only when
the sentencing offense was committed before the defendant completed the
term of probation or parole imposed as a result of the prior conviction, as
was the situation in Vonins.
E. PRV 3—Prior High Severity Juvenile Adjudications
A “prior high severity juvenile adjudication” is a juvenile adjudication:
• for conduct that would be a crime listed in class M2, A, B, C, or D

if committed by an adult, or
• for conduct that would be a felony under federal law or the law of
another state that corresponds to a crime listed in class M2, A, B,
C, or D if committed by an adult, or
• for conduct that, if committed by an adult, would be a felony that

is not listed in any crime class (M2, A, B, C, D, E, F, G, or H) that
is punishable by a maximum term of imprisonment of 10 years or
more, or
• for conduct that, if committed by an adult, would be a felony under

federal law or the law of another state that does not correspond to
a crime listed in any class (M2, A, B, C, D, E, F, G, or H) that is
punishable by a maximum term of imprisonment of 10 years or
more, and
• for which the order of disposition was entered before the *A qualifying
commission date* of the sentencing offense. MCL 777.53(2). “prior high
severity juvenile
adjudication”
As with the PRVs discussed above, determine which one or more of the must satisfy the
statements addressed by PRV 3 apply to the offender and assign the point 10-year gap
value indicated for the applicable statement with the highest number of points. requirements of
MCL 777.50, as
MCL 777.53(1). discussed
above in
Section 8.5(A).
Points PRV 3—Number of prior high severity juvenile adjudications
50 The offender has 3 or more prior high severity juvenile adjudications.
25 The offender has 2 prior high severity juvenile adjudications.
10 The offender has 1 prior high severity juvenile adjudication.
0 The offender has no prior high severity juvenile adjudications.
For purposes of scoring an offender’s prior record variables, “another state”

does not include foreign states. People v Price, 477 Mich 1, 5 (2006) (the
defendant’s previous conviction in Canada was improperly counted for
purposes of PRV 1). Relevant language used in PRV 3 is the same as the
language used in PRV 1—the variable at issue in Price. MCL 777.53(2)

Section 8.5
defines a “prior high severity juvenile adjudication” as “a juvenile

adjudication for conduct that would be a crime listed in offense class M2, A,
B, C, or D if committed by an adult or for conduct that would be a felony
under a law of the United States or another state corresponding to a crime
listed in offense class M2, A, B, C, or D if committed by an adult[.]”
(Emphasis added.) According to the Price Court: “The common
understanding of ‘state’ in Michigan law is a state of the United States, not a
province of Canada and not a foreign state. Obviously, Michigan is one of the
states that comprise the United States. Thus, the most obvious meaning of
‘another state’ in this context is one of the states, other than Michigan, that
comprise the United States. A Canadian conviction is not ‘a felony under a
law of the United States or another state[.]’” Price, supra at 4-5.
F. PRV 4—Prior Low Severity Juvenile Adjudications
A “prior low severity juvenile adjudication” is an adjudication:
• for conduct that would be a crime listed in class E, F, G, or H if

committed by an adult, or
• for conduct that would be a felony under federal law or the law of
another state that corresponds to a crime listed in class E, F, G, or
H if committed by an adult, or
• for conduct that, if committed by an adult, would be a felony that

is not listed in any crime class (M2, A, B, C, D, E, F, G, or H) that
is punishable by a maximum term of imprisonment of less than 10
years, or
• for conduct that, if committed by an adult, would be a felony under

federal law or the law of another state that does not correspond to
a crime listed in any class (M2, A, B, C, D, E, F, G, or H) that is
punishable by a maximum term of imprisonment of less than 10
years, and
*A qualifying • for which the order of disposition was entered before the
“prior low commission date* of the sentencing offense. MCL 777.54(2).
severity juvenile
adjudication”
must satisfy the As with the PRVs already discussed, determine which one or more of the
10-year gap statements addressed by PRV 4 apply to the offender and assign the point
requirements of
MCL 777.50, as
discussed
above in
Section 8.5(A).

value indicated for the applicable statement with the highest number of points.
MCL 777.54(1).
Points PRV 4—Number of prior low severity juvenile adjudications

20 The offender has 6 or more prior low severity juvenile adjudications.
15 The offender has 5 prior low severity juvenile adjudications.
10 The offender has 3 or 4 prior low severity juvenile adjudications.
5 The offender has 2 prior low severity juvenile adjudications.
2 The offender has 1 prior low severity juvenile adjudication.
0 The offender has no prior low severity juvenile adjudications.

language used in PRV 1—the variable at issue in Price. MCL 777.54(2)
defines a “prior low severity juvenile adjudication” as “a juvenile adjudication
for conduct that would be a crime listed in offense class E, F, G, or H if
committed by an adult or for conduct that would be a felony under a law of
the United States or another state corresponding to a crime listed in offense
class E, F, G, or H if committed by an adult[.]” (Emphasis added.) According
to the Price Court: “The common understanding of ‘state’ in Michigan law is
a state of the United States, not a province of Canada and not a foreign state.
Obviously, Michigan is one of the states that comprise the United States.
Thus, the most obvious meaning of ‘another state’ in this context is one of the
states, other than Michigan, that comprise the United States. A Canadian
conviction is not ‘a felony under a law of the United States or another
state[.]’” Price, supra at 4-5.
G. PRV 5—Prior Misdemeanor Convictions or Prior

Misdemeanor Juvenile Adjudications
A “prior misdemeanor conviction” is a conviction:
• for a misdemeanor offense under Michigan law or the law of a

political subdivision of Michigan, or under the law of another state
or a political subdivision of another state, or under the law of the
United States,
• if the conviction was entered before the commission date* of the *Subject to the
sentencing offense. MCL 777.55(3)(a). 10-year gap
requirements of
MCL 777.50, as
A “prior misdemeanor juvenile adjudication” is a juvenile adjudication: discussed in
Section 8.5(A),
• for conduct that, if committed by an adult, would be a above.
misdemeanor under Michigan law or the law of a political

subdivision of Michigan, or under the law of another state or a
Section 8.5
political subdivision of another state, or under the law of the

United States,
• if the order of disposition for the juvenile adjudication was entered

before the commission date of the sentencing offense. MCL
777.55(3)(b).
Score PRV 5 by determining which one or more of the statements addressed

by the variable apply to the offender and assigning the point value indicated
for the applicable statement with the highest number of points. MCL
777.55(1).
Points PRV 5—Number of prior misdemeanor convictions or prior misdemeanor

juvenile adjudications
20 The offender has 7 or more prior misdemeanor convictions or prior
misdemeanor juvenile adjudications.
15 The offender has 5 or 6 prior misdemeanor convictions or prior misdemeanor
juvenile adjudications.
10 The offender has 3 or 4 prior misdemeanor convictions or prior misdemeanor
5 The offender has 2 prior misdemeanor convictions or prior misdemeanor
2 The offender has 1 prior misdemeanor conviction or prior misdemeanor
juvenile adjudication.
0 The offender has no prior misdemeanor convictions or prior misdemeanor
Additional requirements of PRV 5 may eliminate the use of prior convictions

or adjudications that would otherwise qualify under this variable:
 A prior conviction used to enhance the sentencing offense to a felony

may not be counted under PRV 5. MCL 777.55(2)(b).
 Only prior convictions and adjudications for offenses expressly listed
in PRV 5 may be counted as “prior misdemeanor convictions” or
“prior misdemeanor juvenile adjudications” for purposes of scoring
PRV 5:
• only those prior misdemeanor convictions or prior misdemeanor
juvenile adjudications that are offenses against a person or
property, weapons offenses, or offenses involving controlled
substances, and
• all prior misdemeanor convictions and juvenile adjudications for

operating or attempting to operate a vehicle, vessel, ORV,
snowmobile, aircraft, or locomotive while under the influence of
or impaired by alcohol, a controlled substance, or a combination
of alcohol and a controlled substance. MCL 777.55(2)(a)–(b).


language used in PRV 1—the variable at issue in Price. MCL 777.55(3)(a)
defines “prior misdemeanor conviction” as “a conviction for a misdemeanor
under a law of this state, a political subdivision of this state, another state, a
political subdivision of another state, or the United States[.]” MCL
777.55(3)(b) defines “prior misdemeanor juvenile adjudication” as “a
juvenile adjudication for conduct that if committed by an adult would be a
misdemeanor under a law of this state, a political subdivision of this state,
another state, a political subdivision of another state, or the United States[.]”
Michigan law is a state of the United States, not a province of Canada and not
a foreign state. Obviously, Michigan is one of the states that comprise the
United States. Thus, the most obvious meaning of ‘another state’ in this
context is one of the states, other than Michigan, that comprise the United
States. A Canadian conviction is not ‘a felony under a law of the United States
or another state[.]’” Price, supra at 4-5.
A discharge and dismissal following a defendant’s successful completion of

probation under the deferred adjudication provisions of MCL 333.7411 is not
a prior misdemeanor conviction for purposes of scoring PRV 5. People v
James, 267 Mich App 675, 679-680 (2005). MCL 333.7411(1) specifically
states that “[d]ischarge and dismissal under [7411] shall be without
adjudication of guilt and . . . is not a conviction for purposes of this section or
for purposes of disqualifications or disabilities imposed by law upon
conviction of a crime . . . .”
Previous non-OUIL alcohol-related convictions are not convictions involving

a controlled substance for purposes of scoring PRV 5. People v Endres, 269
Mich App 414, 418-420 (2006).
A conviction for failing to stop after an accident is not a prior conviction for *Unpublished
purposes of scoring PRV 5, because it is not “an offense against a person or opinions are not
precedentially
property, a controlled substance offense, or a weapon offense” as set out in binding under
MCL 777.55(2)(a). People v Glover, unpublished opinion per curiam of the the rule of stare
Court of Appeals, issued November 29, 2007 (Docket No. 272993).* The decisis. MCR
Court explained, “[t]o the extent damage to a vehicle must occur for this 7.215(C)(1).
misdemeanor to be committed, the damage is complete before the failure to

stop, and it is the failure to stop, not the damage, that is proscribed by the
statute. See MCL 257.618.” Glover, supra.
A defendant’s prior misdemeanor conviction for driving with a suspended

license should not have been counted for purposes of scoring PRV 5 because
it is not an offense listed in the categories of misdemeanors clearly
enumerated in MCL 777.55(2). People v Clayton, unpublished opinion per
curiam of the Court of Appeals, decided September 13, 2002 (Docket No.
230328).

Section 8.5
However, a previous misdemeanor conviction for obstructing a police officer

is properly included as a prior misdemeanor conviction for purposes of
scoring PRV 5. Clayton, supra. Because resisting or obstructing a law
enforcement officer is specifically designated as a crime against a person, a
misdemeanor violation involving such conduct is appropriately included in
calculating a defendant’s PRV 5 score. Clayton, supra; MCL 777.16x.
A defendant’s previous misdemeanor conviction for “allowing a fire to

escape” was properly included as a prior misdemeanor conviction for
purposes of scoring PRV 5. People v Bryan, unpublished opinion per curiam
of the Court of Appeals, decided July 16, 2002 (Docket No. 227578). In
Bryan, the defendant argued against the conviction’s consideration under
PRV 5 because similar offenses were classified as crimes against public safety
under the legislative sentencing guidelines, a category of crimes not included
by the statutory instructions governing PRV 5. Bryan, supra. The Court
determined that the defendant’s previous conviction was properly counted
under PRV 5 for the following reasons:
“The statutory sentencing guidelines do not define the phrase ‘a

crime against a person or property.’ Moreover, neither the record
nor the parties disclose the specific statute under which defendant
was convicted, but it appears likely the conviction stemmed from
a violation of MCL 320.25(b), which requires a person to take
‘reasonable precautions to . . . prevent the escape’ of any fire set.
Failure to take such precautions was deemed a misdemeanor under
MCL 320.34. The trial court, however, concluded that the
violation of a statute prohibiting allowing a fire to escape was
intended to protect property and is therefore ‘a crime against
property.’ Because fire always damages or destroys property, we
find that the trial court’s interpretation and application of MCL
777.55(2)(a) is consistent with the plain, ordinary, and
unambiguous meaning of the language of the statute and that,
therefore, the trial court correctly counted defendant’s
misdemeanor conviction for ‘allowing a fire to escape’ when
scoring PRV 5.” Bryan, supra (footnote and internal citation
omitted).
The Bryan Court also explained that the guidelines offense categories are
irrelevant to scoring PRV 5:
“[W]e reject defendant’s claim that the guidelines offense

categories established by the Legislature have any bearing on the
scoring of misdemeanor and juvenile[] offense[s] under PRV 5.
These categories apply only to those enumerated felonies to which
the guidelines apply, and are used merely to determine which
offense variables to score. The guidelines offense categories have
no application to the scoring of prior record variables. While the
Legislature could have established ‘offense categories’ for the
purpose of specifying what prior misdemeanor convictions or

juvenile adjudications should be counted to score PRV 5, it did not

do so. Thus, whether a prior offense is to be counted for purposes
of scoring PRV 5 is dependent on the nature of the crime for which
the offender was convicted or adjudicated, not on the offense
category of similar felonies, which are used for scoring sentence
guidelines offense variables. The trial court correctly discerned
and effectuated the intent of the Legislature in so concluding.”
Bryan, supra.
In People v Cadwell, unpublished memorandum opinion of the Court of

Appeals, decided December 20, 2002 (Docket No. 236381), a case involving
a similar challenge to the trial court’s use of a prior misdemeanor conviction
in scoring PRV 5, the appellate panel more succinctly addressed the issue
raised in Bryan, supra:
“For purposes of PRV 5 scoring, MCL 777.55(2)(a) instructs the

court to count a prior misdemeanor conviction or juvenile
adjudication only if it is an offense against a person or property, a
controlled substances offense, or a weapon[s] offense. Unlike
felonies, the Legislature did not place misdemeanors into
categories. In the absence of more specific legislative guidance, it
was for the trial court to determine whether defendant’s
misdemeanor conviction for disorderly jostling, MCL
750.167(1)(k), was a crime against a person. The court noted that
the jostling offense involved unconsented touching of other
persons. The trial court did not err in finding that this was an
offense against a person that should be scored under MCL
777.55.” Cadwell, supra.
See also People v Dimovski, unpublished opinion per curiam of the Court of
Appeals, decided December 18, 2003 (Docket No. 242726) (the trial court
improperly considered the defendant’s multiple prior misdemeanor traffic
violations where the violations were not included in the plain language of the
statute specifying the types of misdemeanors to be included under PRV 5).
H. PRV 6—Relationship to the Criminal Justice System
PRV 6 assesses points based on an offender’s relationship to the criminal

justice system at the time the sentencing offense was committed. MCL
777.56. As with the other prior record variables, PRV 6 is scored by
determining which of the statements addressed by the variable apply to the
offender and assigning the point value indicated by the applicable statement
with the highest number of points. MCL 777.56(1). The scope of PRV 6
includes consideration of an offender’s relationship with a criminal justice
system outside the state of Michigan. The point values indicated by applicable
statements in PRV 6 should be assessed against an offender who is involved

Section 8.5
with the criminal justice system of another state or the federal criminal justice
system. MCL 777.56(2).
Points PRV 6—Offender’s relationship to the criminal justice system

20 The offender is a prisoner of the department of corrections or serving a sentence
in jail. This includes an offender who is an escapee from jail or prison. MCL
777.56(3)(b).
15 The offender is incarcerated in jail awaiting adjudication or sentencing on a
conviction or probation violation.
10 The offender is on parole, probation, or delayed sentence status or on bond
awaiting adjudication or sentencing for a felony.
5 The offender is on probation or delayed sentence status or on bond awaiting
adjudication or sentencing for a misdemeanor.
0 The offender has no relationship to the criminal justice system.
*Specific “Delayed sentence status” includes—but is not limited to—an offender

statutes under assigned or deferred under MCL 333.7411 (deferral for certain controlled
which an
offender’s
substance offenses), MCL 750.350a (deferral under limited circumstances for
sentence may parental kidnapping), MCL 762.11 to 762.15 (assignment to youthful trainee
be delayed are status), and MCL 769.4a (deferral under limited circumstances for domestic
discussed in assault). MCL 777.56(3)(a). Effective January 1, 2005, 2004 PA 220 added to
detail in
Sections 8.41- the list of offenses that may qualify for “delayed sentence status”; delayed
8.43. sentence status is available to offenders assigned or deferred under MCL
600.1076 (deferral involving drug treatment courts), and MCL 750.430
(deferral for impaired healthcare professionals).*
A defendant has a prior “relationship with the criminal justice system” for
purposes of scoring PRV 6 when disposition of a misdemeanor crime
committed by the defendant is pending at the time the defendant
committed the sentencing offense. People v Endres, 269 Mich App 414,
422-423 (2006).
The defendant’s probationary status following his conviction for the

misdemeanor offense of driving with a suspended license was sufficient
to support a score of five points under PRV 6. People v Thornton,
unpublished opinion per curiam of the Court of Appeals, decided June 17,
2003 (Docket No. 237030). The Thornton Court specifically disagreed
with the defendant’s contention that a probationary period resulting from
a conviction for driving with a suspended license was not the “type of
offense” intended to be scored under PRV 6. Thornton, supra, citing
People v Kisielewicz, 156 Mich App 724, 727 (1986), a case involving a
defendant’s probationary status for the same offense and a more serious
motor vehicle violation involving OUIL.

A score of 10 points is appropriate for PRV 6 where the defendant *Unpublished

absconded from probation 20 years before committing the sentencing opinions are not
offense, because “‘a defendant’s period of probation is tolled when he [or precedentially
binding under
she] absconds from probationary supervision’” and “‘[a]n absconding the rule of stare
defendant should not be allowed to benefit from his [or her] wrongful decisis. MCR
noncompliance with the terms of his [or her] probation order.’” People v 7.215(C)(1).
Dendel (On Remand), unpublished opinion per curiam of the Court of
Appeals, issued September 11, 2008 (Docket No. 247391),* quoting
People v Ritter, 186 Mich App 701, 711 (1991). In Dendel, where the
defendant absconded after being placed on probation in 1982, the Court
found that she was still on probation at the time she committed the
sentencing offense in 2002, and that the trial court erred in assessing zero
points for PRV 6. Dendel, supra.
Note: This case was decided on remand from the Michigan

Supreme Court for consideration of issues not decided by
the Court of Appeals in its first decision. People v Dendel,
481 Mich 114, amended 481 Mich 1201 (2008).
Even where the statements addressed by PRV 6 do not accurately describe

a defendant’s circumstances at the time he committed the sentencing
offense, a trial court may properly assess the number of points
corresponding to the statement that most closely describes those
circumstances. People v Edwards, unpublished opinion per curiam of the
Court of Appeals, decided December 20, 2002 (Docket No. 233750). The
defendant was assessed 15 points based on the trial court’s reasoning that
the defendant’s failure to post bail for a misdemeanor charge meant that
the defendant, had he not escaped during transport to the jail to await
adjudication, was technically “incarcerated . . . awaiting adjudication,” a
status addressed by PRV 6 and for which 15 points were appropriate.
Edwards, supra. Although the Court focused primarily on a discussion of
the propriety of the trial court’s sentence departure and whether PRV 6
adequately reflected the circumstances surrounding the offense, the
Court’s discussion implicitly approved of the trial court’s reasoning:
“While defendant’s status as an escapee was a factor in

assessing fifteen points under prior record variable six in
that he was not regarded as being on bond, because he had
not posted bond, and was, rather, regarded as being
incarcerated, the factor did not account for the fact that the
offense was committed during the course of an escape.”
Edwards, supra.
In a case decided under the judicial sentencing guidelines, the Court of

Appeals determined that the trial court properly assessed a defendant five
points under PRV 6 where the defendant’s bail was revoked when he
failed to appear for a hearing following his arrest for an offense other than
the sentencing offense. People v Lyons (After Remand), 222 Mich App
319, 322-323 (1997). The defendant in Lyons argued that he should not
have been assessed any points for PRV 6 because none of the statements

Section 8.5
for the variable described his relationship to the criminal justice system.
Id. Applying the rules of statutory interpretation to the judicial sentencing
guidelines then in effect, the Court concluded that “[i]t would be absurd
to suggest that the drafters of the guidelines intended that a defendant
would receive more lenient treatment by being, in the words of the trial
court, a ‘runaway’ from the criminal justice system.” Id. at 322.
According to the Lyons Court, an offender whose bond was revoked for
failure to appear may not escape characterization as being “on bond” for
purposes of scoring PRV 6. Id. at 322-323.
A defendant’s score of five points under PRV 6 for being on bond for an
offense other than the sentencing offense is appropriate even when the
defendant is acquitted of the first charge. People v Jarvi, 216 Mich App
161, 165 (1996). “The obvious intent of awarding five points to an
individual who commits a crime while on bond or bail has no nexus to
issues of guilt or innocence of the underlying charge.” Id.
A single previous conviction may merit points under PRV 6 and another
prior record variable when the variables are intended to fulfill different
purposes. People v Vonins (After Remand), 203 Mich App 173, 176
(1993). For example, it was not improper “double-counting” for a trial
court to assess points against a defendant under PRV 2 (prior low severity
felony conviction) and PRV 6 when the points were based on the same
previous conviction. Id. According to the Court:
“Each variable is directed toward a different purpose. PRV

2 provides for points for each prior conviction. PRV 6
provides for points when the instant offense is committed
while the defendant is subject to the criminal justice
system. The former is concerned with the number of the
defendant’s prior convictions, the latter with the
defendant’s status in relation to the criminal justice system
when the instant offense occurred.” Id. at 177.
I. PRV 7—Subsequent or Concurrent Felony Convictions
PRV 7 assesses points against an offender for a felony conviction obtained at

the same time as the sentencing offense or a felony conviction obtained after
the commission date of the sentencing offense. MCL 777.57. The statute
defining PRV 7 specifically prohibits the use of certain felony convictions for
purposes of scoring PRV 7:
• A conviction for felony-firearm may not be counted under PRV 7.

MCL 777.57(2)(b).
• A concurrent felony conviction that will result in a mandatory

consecutive sentence may not be counted under PRV 7. MCL
777.57(2)(c).

• A concurrent felony conviction that will result in a consecutive *Effective

sentence under MCL 333.7401(3)* may not be counted under March 1, 2003.
Therefore, the
PRV 7. MCL 777.57(2)(c). prohibition does
not apply to
As with the PRVs discussed above, score PRV 7 by determining which of the offenses
statements apply to the offender and assigning the point value corresponding committed
before March 1,
to the applicable statement with the highest number of points. MCL 2003.
777.57(1).
Note: Only subsequent or concurrent felony convictions may be

counted under PRV 7. Misdemeanor convictions are not included.
Points PRV 7—Number of subsequent or concurrent felony convictions

20 The offender has 2 or more subsequent or concurrent felony convictions.
10 The offender has 1 subsequent or concurrent felony conviction.
0 The offender has no subsequent or concurrent felony convictions.
For purposes of scoring PRV 7, where a defendant is convicted of multiple

offenses, the number of concurrent convictions does not include the
sentencing offense. People v Pickett, unpublished opinion per curiam of
the Court of Appeals, decided May 6, 2004 (Docket No. 246138).
Any “inherent inconsistency” in counting an offender’s concurrent

conviction for purposes of a prior record variable does not trump the clear
language of MCL 777.57, which provides that an offender is to be
assessed points under PRV 7 for felony convictions obtained at the same
time as the conviction for the sentencing offense and felony convictions
obtained after the commission date of the sentencing offense. People v
Rapley, unpublished opinion per curiam of the Court of Appeals, decided
March 18, 2003 (Docket No. 238704). The Court explained:
“MCL 777.57(2)(a) plainly provides that, in scoring PRV

7, the court is to score ‘the appropriate point value if the
offender was convicted of multiple felony counts.’ We
disagree with defendant that this statute is rendered
ambiguous when considered in conjunction with other
statutory provisions . . . . Indeed, if we were to credit
defendant’s argument, MCL 777.57 would be rendered
surplusage, in that no concurrent or subsequent conviction
could ever be scored for purposes of PRV 7.” Rapley,
supra.
PRV 7’s instruction not to count a concurrent conviction if the conviction

will result in the imposition of a mandatory consecutive sentence does not
apply to consecutive sentences resulting from an offender’s parole
violation. People v Clark, unpublished opinion per curiam of the Court of
Appeals, decided October 2, 2003 (Docket No. 240139). The convictions

Section 8.6
prohibited from inclusion under PRV 7 are those where an offender will
be sentenced for at least one concurrent or subsequent conviction at the
time of the sentencing offense and where the concurrent or subsequent
conviction will result in a mandatory consecutive sentence. PRV 7 does
not apply to consecutive sentences that may result from a separate parole
violation hearing. Clark, supra.
*OV 8 under the It is proper to assess points under PRV 7 for the defendant’s commission
statutory of a concurrent felony when the conduct that is the basis of the concurrent
guidelines felony is also conduct scored under an offense variable. People v Jarvi,
assesses points
for a victim’s
216 Mich App 161, 164 (1996). In Jarvi, the defendant was assessed
asportation or points under OV 5 for moving a victim to a place of greater danger or
captivity. Under holding a victim captive for a time longer than necessary to commit the
the judicial offense. Id. at 163. The defendant argued that the points assessed against
guidelines, OV him in OV 5 precluded the trial court from assessing him points under
5 addressed
PRV 7 because the acts that constituted the “concurrent felony” for
this factor.
purposes of PRV 7 (kidnapping) had already been used against him in OV
5. Id. The Jarvi Court disagreed and ruled that assessing points for both
variables was proper where the variables were “two separate categories
addressing two different situations.” Id. at 164. Under the judicial
guidelines in Jarvi, and under the statutory sentencing guidelines now in
effect,* OV 5 accounts for the degree of danger in which a victim is
placed, while PRV 7 addresses whether the offender committed multiple
felony offenses at the same time. Id.
8.6 Scoring an Offender’s Offense Variables (OVs)
The elements of a crime and, as determined by the Legislature, the

aggravating or mitigating factors relevant to the commission of an offense
constitute the “offense characteristics.” MCL 769.31(d). “Offense
characteristics” are measured by scoring the appropriate offense variables.
There are 20 offense variables, some of which have been amended since the
guidelines first went into effect.
Each OV consists of several statements to which a specific number of points

is assigned. These statements quantify the specific offense characteristic
addressed by each individual OV. For example, OV 2 targets the lethal
potential of any weapon possessed by the offender when the sentencing
offense was committed. MCL 777.32. A point value is assigned based on the
specific type of weapon possessed, and the point value increases according to
the deadly potential of the weapon. Where more than one statement under a
specific OV applies to the circumstances of an offense, the applicable
statement with the highest number of points is used to assess the points
attributable to the offender for that OV.

A. OVs According to Crime Group
MCL 777.21 details the method by which an offender’s recommended *Sentencing

minimum sentence range is determined using the offender’s prior record grids are
located at MCL
variable (PRV) and OV scores. The offense category or “crime group” to 777.61 to
which the sentencing offense belongs determines which OVs are scored. 777.69. Each
MCL 777.21(1)(a). The total number of points assessed for all OVs scored for grid is also
an offense constitutes the offender’s “OV level,” which is represented by the included in
Appendix B.
vertical axis on each sentencing grid.*
1. Crimes Against a Person (Person)
“Person” is the designation used to identify crimes against a person in the

statutory lists of felonies to which the guidelines apply. MCL 777.5(a).
For all crimes against a person, OVs 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14,
19, and 20 are to be scored. MCL 777.22(1).
OVs 5 and 6 must also be scored if the sentencing offense is homicide,

attempted homicide, conspiracy or solicitation to commit a homicide, or
assault with intent to commit murder. MCL 777.22(1).
Score OV 16 if the sentencing offense is a violation or attempted violation

of MCL 750.110a (home invasion). MCL 777.22(1).
If the offense or attempted offense involved the operation of a vehicle,

vessel, ORV, snowmobile, aircraft, or locomotive, OVs 17 and 18 should
also be scored. MCL 777.22(1).
2. Crimes Against Property (Property)
“Property” is the term used to designate crimes against property in the

statutory lists of felonies subject to the guidelines. MCL 777.5(b).
For all crimes against property, OVs 1, 2, 3, 4, 9, 10, 12, 13, 14, 16, 19,
and 20 must be scored. MCL 777.22(2).
3. Crimes Involving a Controlled Substance (CS)
“CS” is the designation used to identify crimes involving a controlled

substance in the statutory lists of felony offenses to which the guidelines
apply. MCL 777.5(c).
For all crimes involving a controlled substance, OVs 1, 2, 3, 12, 13, 14,
15, 19, and 20 must be scored. MCL 777.22(3).

Section 8.6
4. Crimes Against Public Order (Pub Ord) and

Crimes Against Public Trust (Pub Trst)
“Pub ord” and “Pub trst” are the abbreviations used to designate crimes
against public order and crimes against public trust in the statutory lists of
felonies to which the guidelines apply. MCL 777.5(d) and (e).
For all crimes against public order and all crimes against public trust,
score OVs 1, 3, 4, 9, 10, 12, 13, 14, 16, 19, and 20. MCL 777.22(4).
5. Crimes Against Public Safety (Pub Saf)
“Pub saf” is the designation used to identify crimes against public safety
in the statutory lists of felony offenses to which the guidelines apply.
MCL 777.5(f).
Score OVs 1, 3, 4, 9, 10, 12, 13, 14, 16, 19, and 20 for all crimes against
public safety. If the offense or attempted offense involved the operation of
a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive, OV 18 must
also be scored. MCL 777.22(5).
*The Court in Conduct specific to one charged offense may be used in calculating the
Cook did not sentence guidelines for a separate but contemporaneous offense, even when
address the
propriety of
the conduct being scored is not necessary to the offender’s conviction of the
using the separate offense. People v Cook, 254 Mich App 635, 638-641 (2003). In
defendant’s Cook, the trial court properly considered the defendant’s conduct in fleeing
conduct for the from police officers* when calculating the sentence guidelines for the
specific variable
at issue in that defendant’s assault conviction, even though the defendant’s flight was
case. somewhat temporally removed from the assault. Id. at 640-641. The Court
stated:
“[W]here the Legislature has not precluded it, we find that where
the crimes involved constitute one continuum of conduct, as here,
it is logical and reasonable to consider the entirety of defendant’s
conduct in calculating the sentencing guideline range with respect
to each offense.” Id. at 641.
If MCL 771.14(2)(e) requires scoring more than one offense, care must be
taken to avoid scoring a variable for offenses arising from the continuum of
conduct when the conduct-specific variable may not apply to all offenses
being scored. For example, OV 5 is a variable scored only in very specific
circumstances: when the sentencing offense is homicide, attempted homicide,
conspiracy or solicitation to commit a homicide, or assault with intent to
commit murder. MCL 777.22(1). Therefore, OV 5 is properly scored for a
second-degree murder conviction but should not be scored for an offender’s
contemporaneous arson conviction. See MCL 777.22(1); People v Strouse,
unpublished opinion per curiam of the Court of Appeals, decided February 4,
2003 (Docket No. 234034). Although arson of a dwelling house is a crime
against a person, arson is not one of the crimes enumerated in MCL 777.22(1)
for which OV 5 should be scored. MCL 750.72; MCL 777.16c.

Unless the sentencing guidelines expressly prohibit it, a trial court may *See e.g., OV 3,
properly consider a factor in scoring a defendant’s OVs when the factor was where the
guidelines
also an element of the offense.* People v Gibson, 219 Mich App 530, 534 preclude
(1996). In Gibson, the defendant objected to the trial court’s score of 25 points scoring five
for OV 2 under the judicial sentencing guidelines (the equivalent of OV 3 points for injury
under the statutory guidelines) for causing “personal injury to the victim” if bodily injury is
an element of
when the injury suffered by the victim formed the basis of the offense with the sentencing
which the defendant was charged—first-degree criminal sexual conduct. Id. offense, and OV
The defendant argued that using the same conduct to charge him with a more 8, where the
guidelines
serious crime and to increase the point total under a variable measuring the preclude
same conduct resulted in his being punished twice for the same conduct. Id. scoring points
Because an offender’s OV scores are not a form of “punishment” as for asportation
contemplated by the prohibition against multiple punishments for the same when the
sentencing
crime, scoring an offender for conduct under the OVs when that conduct also offense is
constituted an element of the crime charged did not violate the prohibition kidnapping.
against double jeopardy. Id. at 535.
See also People v Cotton, 209 Mich App 82, 84 (1995) (it was proper to
prosecute the defendant for first-degree criminal sexual conduct because the
victim was younger than 13 years of age and to assess points against the
defendant for exploiting a victim’s vulnerability because the victim was
younger than 13 years of age), and People v Nantelle, 215 Mich App 77, 84-
85 (1996) (same result where the age of the victim and the defendant’s
position of authority were elements of second-degree criminal sexual conduct
and were factors properly considered in scoring OV 7 under the judicial
guidelines).
B. OV 1—Aggravated Use of a Weapon
OV 1 is scored for all offenses to which the sentencing guidelines apply,

without regard to crime group designations. MCL 777.22(1)–(5). Determine
which statements addressed by OV 1 apply to the offense and assign the point
value indicated by the applicable statement having the highest number of
points. MCL 777.31(1).
Points OV 1—Aggravated use of a weapon

25 A firearm was discharged at or toward a human being or a victim was cut or
stabbed with a knife or other cutting or stabbing weapon. MCL 777.31(1)(a).
20 The victim was subjected or exposed to a harmful biological substance, harmful
biological device, harmful chemical substance, harmful chemical device,
harmful radioactive material, harmful radioactive device, incendiary device, or
explosive device. MCL 777.31(1)(b).
15 A firearm was pointed at or toward a victim or the victim had a reasonable
apprehension of an immediate battery when threatened with a knife or other
cutting or stabbing weapon. MCL 777.31(1)(c).
10 The victim was touched by any other type of weapon. MCL 777.31(1)(d).
5 A weapon was displayed or implied. MCL 777.31(1)(e).
0 No aggravated use of a weapon occurred. MCL 777.31(1)(f).

Section 8.6
1. Special Instructions and Definitions
• Each person in danger of injury or loss of life is counted as a victim

for purposes of scoring OV 1. MCL 777.31(2)(a).
• In cases involving multiple offenders, if one offender is assigned

points for the use or the presence of a weapon, all offenders must
be assigned the same number of points. MCL 777.31(2)(b).
• Do not score five points if the sentencing offense is a conviction

of MCL 750.82 (felonious assault) or MCL 750.529 (armed
robbery). MCL 777.31(2)(e).
• Score five points if an offender used an object to suggest that he or

she had a weapon. MCL 777.31(2)(c).
• Score five points if an offender used a chemical irritant, a chemical

irritant or smoke device, or an imitation harmful substance or
device. MCL 777.31(2)(d).
• “Harmful biological substance,” “harmful biological device,”

“harmful chemical substance,” “harmful chemical device,”
“harmful radioactive material,” “harmful radioactive device,” and
“imitation harmful substance or device” are defined in MCL
750.200h. MCL 777.31(3)(a).
• “Incendiary device” includes gasoline or any other flammable

substance, a blowtorch, fire bomb, Molotov cocktail, or other
similar device. MCL 777.31(3)(b).
*OVs 2 and 3 The instructions for scoring OV 1 include specific directions in cases
also have involving multiple offenders.* For OV 1, where multiple offenders are
multiple involved and one offender is assessed points under the variable, all
offender
provisions.
offenders must be assessed the same number of points. MCL
777.31(2)(b). However, the multiple offender provision applies only when
the offenders are being scored for the same offense. People v Johnston,
478 Mich 903, 904 (2007). The multiple offender provision does not
require that an offender be assessed the same number of points as other
offenders involved in the same criminal episode if the offender was the
only person convicted of the specific crime being scored. Id.
The multiple offender provision in OVs 1 and 3 requires that the score
assessed the first offender sentenced for the crime, if uncontested, is the
score that must be assessed all offenders involved in the offense. People v
Morson, 471 Mich 248, 262 (2004) (the defendant and the codefendant
robbed a woman at gunpoint and a third party was injured when the
codefendant shot him). The Court explained that its conclusion did not
eliminate the “highest number of points” requirement or sanction the
repetition of inaccurate OV scores: the first offender assessed points
should be assessed the highest number of points appropriate to the offense
and unless contested, that same number of points should be assessed

against all other offenders involved. Id. at 260. Without evaluating the
accuracy of OVs 1 and 3, the Morson Court stated:
“On the facts before us, we agree with defendant that the
plain language of subsection 2 requires that defendant,
when scored on the armed robbery conviction, be assessed
the same scores on OV 1 and OV 3 that [the codefendant]
was previously assessed on those variables when she was
scored for armed robbery.
***
“While we agree that the sentencing court should not be

bound to apply an erroneous score in the multiple offender
context, we note that the prosecution does not characterize
[the codefendant’s] scores on OV 1 and OV 3 of her armed
robbery conviction as inaccurate or erroneous. In fact, the
prosecution acknowledged in its brief that [the
codefendant’s] scores were not disputed by the prosecution
at sentencing.
***
“[I]n the absence of any clear argument that the scores

assessed to [the codefendant] under OV 1 and OV 3 were
incorrect, the sentencing court should have assessed
defendant the same number of points that were assessed to
[the codefendant] for OV 1 and OV 3 . . . fifteen points and
zero points.” Id. at 259-261 (footnotes omitted).
Simply put, unless some objection is raised to the scores calculated for the
first offender, the plain language of the multiple offender provision
requires that all offenders receive the same number of points given to the
first offender for that variable.
In People v Libbett, 251 Mich App 353, 366 (2002), the defendant argued
that OV 1 was improperly scored because he received a higher score for
the variable than did the other offender involved in the crime who had
been sentenced pursuant to a plea agreement before the defendant’s trial.
According to the defendant, his OV 1 score was required to match the OV
1 score of the other offender because the other offender’s score was
recorded first. Id. at 365. The Court of Appeals disagreed. OV 1, as
applied to multiple offender situations, does not, as the defendant in
Libbett asserted, “require[] that all offenders in a multiple offender
situation receive the same score [] regardless of whether the initial scoring
was indisputably incorrect.” Id. According to the Court, the Legislature
clearly intended that a sentencing court first make an accurate
determination of the number of points appropriate under OV 1, and then
the sentencing court is to score each offender involved with the same
number of points. Id. at 367.

Section 8.6
Note: In Libbett, the defendant’s OVs were scored based

on evidence established at his trial, while the other
offender’s scores were assessed without the benefit of this
trial information. This procedural difference gave rise to
the implication that the first offender’s scores were less
accurate than the defendant’s, or at least that the first
offender’s scores were not supported by the amount of
evidence in support of the defendant’s scores. Id. at 367 n
8.
*Notwithstand- Although the parties did not dispute that the codefendant’s OV score was
ing other means inaccurate, no reference is made to whether either party objected to the
of challenging a scores received by the codefendant in Libbett. (With regard to OV 3,
court’s ruling.
however, the record shows that both parties in Libbett agreed that the
variable was inaccurately scored.) After Morson, supra, it appears that
some challenge must be made to the accuracy of the scores received by the
first offender in order to merit review of the second offender’s scores.*
*The Court Points may be scored for OV 1 regardless of whether the defendant
characterized personally committed the act on which the OV score is based. People v
its analysis of Rogers, unpublished opinion per curiam of the Court of Appeals, issued
the scoring
issues as dicta
November 13, 2008 (Docket No. 279521). Because nothing in the
with regard to a language of MCL 777.31 suggests that the conduct contemplated in OV 1
properly must be committed by the particular offender being sentenced, the
preserved defendant’s score of 10 points for OV 1 (“[t]he victim was touched by any
challenge to the other type of weapon”) was upheld even though there was no evidence
same scoring
that she personally burned the victim with an iron. Rogers, supra.
issues that may
occur in
subsequent In the context of reviewing the defendant’s claim that he was denied the
cases. Wilson, effective assistance of counsel, the Court of Appeals examined the
supra at 395 n defendant’s otherwise unpreserved and unreviewable argument that the
1.
trial court improperly assessed points against him under OV 1. People v
Wilson, 252 Mich App 390, 394 (2002).* In Wilson, the defendant
correctly noted that a brass statue and a shotgun are not “other cutting or
stabbing weapon[s]” for purposes of scoring OV 1, even if the items were
used in some method that resulted in the victim’s bleeding. Id. at 394-395.
According to the Court, “To the extent that either object was used in a
manner to cause the primary victim to bleed, it was not because she was
cut or stabbed, but because she was hit with a relatively heavy object.” Id.
at 395.
“Harmful biological substance” for purposes of scoring OV 1 includes

HIV-infected blood because blood containing HIV is “a substance
produced by a human organism that contains a virus that can spread or
cause disease in humans” as required by the definition of “harmful
biological substance” in MCL 750.200h(g). People v Odom, 276 Mich
App 407, 413 (2007) (twenty points were properly scored for OV 1 where
the defendant, who was HIV positive and whose mouth was bleeding, spit
on a corrections officer).

“Harmful biological substance” for purposes of scoring OV 1 includes

fecal matter because “human fecal matter contains harmful bacteria that
could cause disease in another human being.” People v Huddleston,
unpublished opinion per curiam of the Court of Appeals, issued
November 12, 2009 (Docket No. 285961) (20 points were properly scored
for OV 1 where the defendant threw feces into the face and mouth of a jail
deputy, and the Court took judicial notice of human fecal matter’s
potential to cause disease in another human being because of the harmful
bacteria contained in it).
“Harmful chemical substance” for purposes of scoring OV 1 does not

include heated cooking oil because, under MCL 750.200i(1)(b), cooking
oil is not a substance that “possess[es] an inherent or intrinsic ability or
capacity to cause death, illness, injury or disease” as required by the term
“harmful.” People v Blunt, 282 Mich App 81, 86, 89 (2009) (points were
improperly scored for OV 1 where the defendant threw hot oil at the
victim’s face). Any substance that is innocuous in its unaltered state is not
a harmful substance under MCL 777.31(1)(b). Id. at 88.
A glass mug may be a “weapon” for purposes of scoring OV 1. Ten points

were properly scored against the defendant who caused his wife’s injuries
and eventual death by striking her with a glass mug. People v Lange, 251
Mich App 247, 252-255 (2002). The Court reasoned that the Legislature’s
use of the word “weapon” was not predicated on an object’s ability to
reflect an offender’s “plan” or “preparation.” Id. at 255. The fact that the
defendant did not plan to use the mug as a weapon did not preclude the
mug’s characterization as a weapon. Id. In defining what the Legislature
intended by the word “weapon” in OV 1, the Court referred to a previous
Michigan Supreme Court decision in which the issue was addressed:
“‘Some weapons carry their dangerous character because

so designed and are, when employed, per se, deadly, while
other instrumentalities are not dangerous weapons unless
turned to such purpose. The test as to the latter is whether
the instrumentality was used as a weapon and, when so
employed in an assault, dangerous. The character of a
dangerous weapon attaches by adoption when the
instrumentality is applied to use against another in
furtherance of an assault. When the purpose is evidenced
by act, and the instrumentality is adapted to
accomplishment of the assault and capable of inflicting
serious injury, then it is, when so employed, a dangerous
weapon.’” Id. at 256, quoting People v Vaines, 310 Mich
500, 505-506 (1945).
OV 1 was properly scored at 25 points where the trial court had “a sound
evidentiary basis” for determining that the shooter discharged his gun “in
the victim’s general direction,” and the evidence established neither that
the shooter intended to hit the victim nor that he intentionally shot away
from the victim. People v Greyerbiehl, unpublished opinion per curiam of
the Court of Appeals, decided December 20, 2002 (Docket No. 233472).

Section 8.6
Where the defendant admitted throwing a stick that struck the victim’s leg
and knocked the victim down, the evidence established that the “victim
was touched [with] any other type of weapon” for the purposes of scoring
OV 1. People v Jones, unpublished opinion per curiam of the Court of
Appeals, decided July 22, 2003 (Docket No. 238557).
*Unpublished Points are appropriately assessed under OV 8 even if the defendant does
opinions are not not directly engage in the conduct that led to the scoring decision. People
precedentially v Moncivais, unpublished opinion per curiam of the Court of Appeals,
binding under
the rule of stare
issued May 1, 2008 (Docket No. 276992).* In Moncivais, supra, the
decisis. MCR defendant drove a friend to rob a carwash. During the robbery the friend
7.215(C)(1). forced two employees to enter a separate room. The trial court scored 15
points for OV 8 (which is appropriate when a victim is asported to another
place or situation of greater danger or was held captive beyond the time
necessary to commit the offense). The defendant objected on the ground
that he did not directly engage in the conduct that led to the scoring
decision and argued that all offenders in a multiple offender situation
should not be assessed the same score for OV 8. Id. The Court of Appeals
concluded that the plain language of MCL 777.38(1) “directs the court to
consider the victims’ situation and circumstances during the offense
without regard to which offender participated in the relevant conduct.”
Moncivais, supra. The Court of Appeals declined to read limiting
language into the statute and reasoned that “[w]hile the instructions do not
expressly require the court to impose the same score for all offenders in a
multiple offender case, they do not require the court to consider only the
individual who personally committed the acts leading to the scoring
decision.” Id.
Where the complainant testified that he was under the impression that the
defendant was carrying a gun because the defendant kept his hand inside
his shirt during the robbery, OV 1 was correctly scored for the defendant’s
implied use of a weapon. People v Gholston, unpublished opinion per
curiam of the Court of Appeals, decided September 11, 2003 (Docket No.
240810).
The Court of Appeals affirmed the trial court’s score of five points for OV
1 against a defendant who appeared to be grasping the handle of a firearm
in his pants as he handed a note to a cashier indicating that he had a gun.
People v Elliott, 215 Mich App 259, 261 (1996). According to the Court,
“[T]he guidelines clearly contemplate the implied use of a firearm.” Id.
C. OV 2—Lethal Potential of the Weapon Possessed or Used
OV 2 is scored for crimes against a person, crimes against property, and

crimes involving a controlled substance. MCL 777.22(1), (2), and (3). Score
OV 2 by determining which statements apply to the circumstances of the

offense and assigning the point value indicated by the applicable statement
having the highest number of points. MCL 777.32(1).
Points OV 2—Lethal potential of the weapon possessed or used

15 The offender possessed or used a harmful biological substance, harmful
biological device, harmful chemical substance, harmful chemical device,
harmful radioactive material, or harmful radioactive device. MCL 777.32(1)(a).
15 The offender possessed or used an incendiary device, an explosive device, or a
fully automatic weapon. MCL 777.32(1)(b).
10 The offender possessed or used a short-barreled rifle or a short-barreled
shotgun. MCL 777.32(1)(c).
5 The offender possessed or used a pistol, rifle, shotgun, or knife or other cutting
or stabbing weapon. MCL 777.32(1)(d).
1 The offender possessed or used any other potentially lethal weapon.
MCL 777.32(1)(e).
0 The offender possessed or used no weapon. MCL 777.32(1)(f).
• In cases involving multiple offenders, if one offender is assessed

points for possessing a weapon, all offenders must be assessed the
same number of points. MCL 777.32(2).

“harmful radioactive material,” and “harmful radioactive device”
are defined in MCL 750.200h. MCL 777.32(3)(a).
• A “fully automatic weapon” is a firearm that ejects an empty

cartridge and loads a live cartridge from the magazine for the next
shot without requiring renewed pressure on the trigger for each
successive shot. MCL 777.32(3)(b).
• A “pistol,” “rifle,” or “shotgun” includes a revolver, semi-

automatic pistol, rifle, shotgun, combination rifle and shotgun, or
other firearm made in or after 1898 that fires fixed ammunition. A
“pistol,” “rifle,” or “shotgun” does not include a fully automatic
weapon or short-barreled shotgun or short-barreled rifle. MCL
777.32(3)(c).
• An “incendiary device” includes gasoline or any other flammable

similar device. MCL 777.32(3)(d).

The instructions for scoring OV 2 include specific directions in cases *OVs 1 and 3
involving multiple offenders.* For OV 2, where multiple offenders are also have
involved and one offender is assessed points under the variable, all multiple
offender
offenders must be assessed the same number of points. MCL 777.32(2). provisions.

Section 8.6
However, the multiple offender provision applies only when the offenders
are being scored for the same offense. People v Johnston, 478 Mich 903,
904 (2007). The multiple offender provision does not require that an
offender be assessed the same number of points as other offenders
involved in the same criminal episode if the offender was the only person
convicted of the specific crime being scored. Id.
“A metal pipe or bat used to strike a person in the head is unquestionably

a potentially lethal weapon.” People v McCullen, unpublished opinion per
curiam of the Court of Appeals, decided January 11, 2005 (Docket No.
250000).
Five points were proper where the police discovered a lock-blade knife on
top of a stove in which cocaine was stored. For purposes of OV 2, the
defendant “possessed” the knife at the same time that he “possessed” the
cocaine, even though the defendant was not inside the house when the
items were discovered. The defendant’s location did not eliminate the
knife’s lethal potential. People v Harris, unpublished opinion per curiam
of the Court of Appeals, decided November 16, 2004 (Docket No.
250802), relying on People v Burgenmeyer, 461 Mich 431, 439-440
(2000).
Five points were properly assessed under OV 2 for the defendant’s

constructive possession of a firearm even though the shotgun at issue was
unloaded and in a closet. People v Reed, unpublished opinion per curiam
of the Court of Appeals, issued October 14, 2008 (Docket No. 278567)
(the firearm was in a closet in a bedroom used by the defendant, and “the
bedroom closet door was open when the police arrived, and the shotgun
was clearly visible inside”). Specifically “there was evidence to find by a
preponderance of the evidence that [the] defendant constructively
possessed the shotgun where he knew of the shotgun’s presence, it was
reasonably accessible to him, he was close to it and had the right to
exercise control over it, even though other people also lived in, and had
access to, the residence.” Id. Further, the fact that the defendant was
acquitted of weapons charges was irrelevant in scoring OV 2, because a
trial court’s factual findings for purposes of sentencing are not subject to
the same standard (proof beyond a reasonable doubt) required for a
conviction. Id.
A witness’s testimony that the weapon used by the defendant was “shorter
than a normal size shotgun” is sufficient to support a score of ten points
under OV 2. People v Brewer, unpublished opinion per curiam of the
Court of Appeals, decided February 19, 2004 (Docket No. 242764).
“Harmful chemical substance” for purposes of scoring OV 2 does not

include heated cooking oil because, under MCL 750.200i(1)(b), cooking
oil is not a substance that “possess[es] an inherent or intrinsic ability or
capacity to cause death, illness, injury or disease” as required by the term
“harmful.” People v Blunt, 282 Mich App 81, 86, 89 (2009) (points were
improperly scored for OV 2 where the defendant threw hot oil at the
victim’s face). Any substance that is innocuous in its unaltered state is not
a harmful substance under MCL 777.32(1)(a). Id. at 88.

D. OV 3—Physical Injury to a Victim
OV 3 is scored for all felony offenses to which the sentencing guidelines

apply. MCL 777.22(1)-(5). To score OV 3, determine which statements
addressed by the variable apply to the offense and assign the point value
indicated by the applicable statement with the highest number of points. MCL
777.33(1).
Points OV 3—Degree of physical injury sustained by a victim

100 A victim was killed. MCL 777.33(1)(a).
50 A victim was killed. MCL 777.33(1)(b).
(35 points for offenses committed before September 30, 2003. 2003 PA 134.)
25 Life threatening or permanent incapacitating injury occurred to a victim.
MCL 777.33(1)(c).
10 Bodily injury requiring medical treatment occurred to a victim.
MCL 777.33(1)(d).
5 Bodily injury not requiring medical treatment occurred to a victim.
MCL 777.33(1)(e).
0 No physical injury occurred to a victim. MCL 777.33(1)(f).
• In cases involving multiple offenders, if one offender is assessed

points for death or physical injury, all offenders must be assessed
the same number of points. MCL 777.33(3)(a).
• Score 100 points if death results from the commission of the *See Appendix
offense and homicide is not the sentencing offense. MCL C for a list of
these offenses.
777.33(2)(b). Any crime in which the death of a person is an
element of the crime is a “homicide.”* MCL 777.1(c).
• Score 50 points under this variable if death results from an offense *See MCL
or attempted offense that involves the operation of a vehicle, 777.1 for
definitions of
vessel, ORV, snowmobile, aircraft, or locomotive* and any of the “aircraft,”
following apply: “ORV,”
“snowmobile,”
–the offender was under the influence of or visibly impaired by “vehicle,” and
the use of alcohol, a controlled substance, or a combination of “vessel.”
alcohol and a controlled substance, MCL 777.33(2)(c)(i);
–the offender had an alcohol content of 0.08 grams* or more per *Effective
100 milliliters of blood, per 210 liters of breath, or per 67 October 1,
2013, the
milliliters of urine, MCL 777.33(2)(c)(ii); or alcohol content
level increases
–the offender’s body contained any amount of a controlled to 0.10 grams or
substance listed in schedule 1 under MCL 333.7212 or a rule more.
promulgated under that section, or a controlled substance
described in MCL 333.7214(a)(iv), MCL 777.33(2)(c)(iii).

Section 8.6
• Do not score five points if “bodily injury” is an element of the

sentencing offense. MCL 777.33(2)(d).
• “Requiring medical treatment” refers to an injury’s need for

treatment not whether a victim was successful in obtaining
treatment. MCL 777.33(3).
Points are appropriately scored for OV 3 only where there is record

evidence of a victim’s injury; a prosecutor’s file notes do not constitute
record evidence. People v Endres, 269 Mich App 414, 417-418 (2006).
For purposes of scoring OV 3, a “victim” includes any person harmed as

a result of the offender’s conduct. People v Albers, 258 Mich App 578,
593 (2003). In Albers, the defendant was convicted of involuntary
manslaughter for the death of a child killed in an apartment complex fire
caused by the defendant’s son. Id. at 580. The defendant argued that OV
3 was improperly scored for injury to an individual other than the child
who died as a result of the fire and for whose death the defendant was
convicted. Id. at 591.
The Court of Appeals first noted that MCL 777.33 does not contain any
language defining the term “victim” for purposes of scoring OV 3. Albers,
supra at 592-593. The defendant asserted that the statute’s use of the term
“victim” in its singular form indicated a legislative “intent that OV 3 apply
only to the victim of the charged offense.” Id. However, rules of statutory
construction clearly provide that every reference to the singular may
include reference to the plural. MCL 8.3b; Albers, supra at 593.
According to the Court, had the Legislature intended that OV 3 be limited
in application to the victim of the charged offense, it could easily have
expressed that intention in the statutory language governing OV 3. Id.
Finding no authority indicating otherwise, the Court of Appeals
concluded that for purposes of scoring OV 3, “the term ‘victim’ includes
any person harmed by the criminal actions of the charged party.” Id.
Like OV 1, the multiple offender provision in OV 3 requires that the score

assessed the first offender sentenced for the crime, if uncontested, is the
score that must be assessed all offenders involved in the offense. See
People v Morson, 471 Mich 248, 262 (2004) (the defendant and the
codefendant robbed a woman at gunpoint and a third party was injured
when the codefendant shot him). However, the multiple offender
provision applies only when the offenders are being scored for the same
offense. People v Johnston, 478 Mich 903, 904 (2007). The multiple
offender provision does not require that an offender be assessed the same
number of points as other offenders involved in the same criminal episode
if the offender was the only person convicted of the specific crime being
scored. Id. The Morson Court explained that its conclusion did not
eliminate the “highest number of points” requirement or sanction the
repetition of inaccurate OV scores: the first offender assessed points
should be assessed the highest number of points appropriate to the offense
and unless contested, that same number of points should be assessed

against all other offenders involved. Morson, supra at 260. Without

evaluating the accuracy of OVs 1 and 3, the Morson Court stated:
“On the facts before us, we agree with defendant that the
plain language of subsection 2 requires that defendant,
when scored on the armed robbery conviction, be assessed
the same scores on OV 1 and OV 3 that [the codefendant]
was previously assessed on those variables when she was
scored for armed robbery.
***
“While we agree that the sentencing court should not be

bound to apply an erroneous score in the multiple offender
context, we note that the prosecution does not characterize
[the codefendant’s] scores on OV 1 and OV 3 of her armed
robbery conviction as inaccurate or erroneous. In fact, the
prosecution acknowledged in its brief that [the
codefendant’s] scores were not disputed by the prosecution
at sentencing.
***
“[I]n the absence of any clear argument that the scores

assessed to [the codefendant] under OV 1 and OV 3 were
incorrect, the sentencing court should have assessed
defendant the same number of points that were assessed to
[the codefendant] for OV 1 and OV 3 . . . fifteen points and
zero points.” Id. at 259-261 (footnotes omitted).
In People v Libbett, 251 Mich App 353, 364 (2002), a case involving
multiple offenders, the defendant argued that he was assessed an improper
number of points under OV 3 because the other offender involved
received zero points for OV 3. However, the Libbett Court reasoned that
the defendant’s argument that his OV 3 score was required to match the
other offender’s OV 3 score was irrelevant because the other offender
received zero points under the variable. The plain language of the statute
indicates that all offenders must receive the same number of points when
one offender is assessed points for the variable. MCL 777.33(2)(a);
Libbett, supra at 364 n 6. In Libbett, because the other offender had not
been assessed points for death or physical injury under OV 3, the statutory
mandate requiring that all offenders be assessed the same number of
points was not triggered. Id. The statutory language does not state that
where one offender receives zero points for OV 3, points must not be
assessed against the other offenders. With regard to the defendant’s
argument about his OV 3 score, the Libbett Court relied on the statutory
language in concluding that the “multiple offender clause” offered no
scoring guarantee when an offender is assessed zero points. Id.
Twenty-five points are properly scored for OV 3 when a victim is killed

as a result of the defendant’s conduct and the sentencing offense is
Section 8.6
homicide. People v Houston, 473 Mich 399, 402 (2005). The Court noted
that the guidelines instructed the sentencing court to score the highest
number of points applicable, and because 100 points was not an option,
the number of points attributable to the next applicable variable statement
should be scored. Houston, supra at 405-407. According to the Court, the
Houston defendant’s argument that zero points should be scored wrongly
assumed “that only the ‘ultimate result’ of a defendant’s criminal act—
here, the death rather than the injury that preceded the death—may be
considered in scoring OV 3.” Id. at 405. The Court explained that while
the defendant’s gunshot to the victim’s head ultimately killed the victim,
the defendant’s conduct also caused the victim to first suffer a “[l]ife-
threatening or permanent incapacitating injury” for which 25 points were
appropriately scored. Id. at 402.
Pregnancy resulting from sexual assault is “bodily injury” for purposes of

scoring OV 3. People v Cathey, 261 Mich App 506, 513-514 (2004).
Cathey approved the resolution of this issue in a case decided under the
judicial guidelines—People v Woods, 204 Mich App 472, 474-475 (1994)
(under the judicial guidelines then in effect, bodily injury was addressed
by OV 2). Woods quoted with approval a California appellate court’s
decision involving a similar issue:
“‘A pregnancy resulting from a rape (and, in this case, a

resulting abortion) are not injuries necessarily incidental to
an act of rape. The bodily injury involved in a pregnancy
(and, in this case, a resulting abortion) are significant and
substantial. Pregnancy cannot be termed a trivial,
insignificant matter. It amounts to significant and
substantial bodily injury or damage. . . . Major physical
changes begin to take place at the time of pregnancy. It
involves a significant bodily impairment primarily
affecting a woman’s health and well being. It is all the
more devastating when imposed on a woman by forcible
rape.
“‘Pregnancy can have one of three results—childbirth,

abortion or miscarriage. Childbirth is an agonizing
experience. An abortion by whatever method used
constitutes a severe intrusion into a woman’s body. A
miscarriage speaks for itself. . . . We merely find that the
facts in this case, i.e., a pregnancy followed by an abortion,
clearly support a finding of great bodily injury.’” Woods,
supra at 474-475, quoting People v Sargent, 86 Cal App 3d
148, 151-152; 150 Cal Rptr 113 (1978).
Five points may be assessed against a defendant (for bodily injury not
requiring medical treatment) where “the victim received a homemade
tattoo and sustained a small bruise to her right buttock and irritation and
redness to her vaginal opening.” People v Apgar, 264 Mich App 321, 329
(2004).

Five points for bodily injury not requiring medical treatment are
appropriate where the only injury alleged was that the victim experienced
pain as a result of the defendant’s assault. People v Lancaster,
unpublished opinion per curiam of the Court of Appeals, decided
February 19, 2004 (Docket No. 244818). According to the Court, “[P]ain,
alone, is [] sufficient to constitute bodily injury [because p]ain . . . is a
general indication that bodily injury of some type occurred.” Id.
Absent any evidence that the victim was actually infected with HIV, life-
threatening injury does not occur when a defendant with HIV has
unprotected sex with an uninformed person. People v Clayton,
September 13, 2002 (Docket No. 230328).
Merely because a life-threatening injury may respond to medical

treatment and ultimately heal does not remove it from the level of injury
meriting 25 points under OV 3. People v Williams, unpublished opinion
per curiam of the Court of Appeals, decided May 20, 2003 (Docket No.
230566).
E. OV 4—Psychological Injury to a Victim
OV 4 is scored for all offenses to which the guidelines apply except crimes
involving a controlled substance. MCL 777.22(1), (2), (4), and (5). Score OV
4 by determining which statement applies to the offense and assigning the
point value indicated by the applicable statement. MCL 777.34(1).
Points OV 4—Degree of psychological injury sustained by a victim

10 Serious psychological injury requiring professional treatment occurred to a
victim. MCL 777.34(1)(a).
0 No serious psychological injury requiring professional treatment occurred to a
victim. MCL 777.34(1)(b).
Ten points may be scored if the victim’s serious psychological injury may
require professional treatment. Whether the victim has sought treatment
for the injury is not conclusive. MCL 777.34(2).
Evidence supported the trial court’s score of ten points under OV 4 where
the victim’s impact statement indicated that her
“life has been terrible since the incidents. She states that
she has a lot of nightmares, problems in her marriage,
problems at work, and in just about every other facet of her
life. She states that this whole situation has been a
nightmare . . . . She indicates that she has not sought
treatment as of this writing date, however, she plans to do

Section 8.6
so in the future.” People v Drohan, 264 Mich App 77, 90

(2004), lv gtd on other grounds 472 Mich 881 (2005).
Serious psychological injury requiring treatment may not be presumed;

points may be assessed under OV 4 only where there exists some evidence
that a victim suffered serious psychological harm that required
professional treatment. People v Hicks, 259 Mich App 518, 535 (2003).
Ten points are improper when “the record does not reflect any evidence of
serious psychological harm to the victim or give any indication that [the
victim] needed psychological treatment.” Id. See also People v Kruithoff,
December 16, 2003 (Docket No. 242739), where, despite a factual
situation that “would be a traumatic event for most people, implicating the
possible need of psychological treatment[,]” the trial court improperly
scored OV 4 at ten points where “neither of defendant’s parents [who
witnessed the defendant’s conduct] testified as to any resultant
psychological harm.”
The Court of Appeals affirmed the trial court’s scoring of ten points for OV 4
based primarily on the Court’s conclusion that videotaped evidence showed
the victims behaving in a manner that indicated both victims had suffered
serious psychological injury as a result of the defendant’s conduct. People v
Wilkens, 267 Mich App 728, 740-741 (2005).
Said the Wilkens Court:
“With regard to the male victim, the videotape reveals that his
attitude took a disturbing turn during the course of the forty-one
minute incident. Toward the end, he resorted to making violent
threats against the female victim to coerce her into continuing the
sex acts. This, in light of the fact that the male victim’s demeanor
on the stand was rather casual, indicates that the male victim
suffered serious psychological injury as a result of this incident
such that he was rendered unable to comprehend the gravity of his
actions. This supports the trial court’s scoring of OV 4.
“With regard to the female victim, the trial court relied on

statements that she made ‘on the videotape and everything else.’
Though the female victim did not testify, the videotape shows that
the female victim repeatedly indicated that she did not want to
continue the sex acts and that the ‘motion lotion’ was hurting her.
Yet defendant asserted that the videotape was not worth the money
he spent on the clothes and urged the female victim to continue.
Ultimately, the female victim sat up in bed and remained silent
while defendant attempted to coax her into continuing. This
evidence indicates that defendant’s actions caused the female
victim anxiety, altered her demeanor, and caused her to withdraw;
it supports a finding of serious psychological injury occurring to
the female victim.” Id.

Despite the clear mandate in Hicks, supra, other panels of the Court of
Appeals have approved a ten-point score for OV 4 based primarily on the
sentencing court’s inference from facts in the case that psychological
harm requiring professional treatment occurred. See e.g., Apgar, supra at
329, where the Court of Appeals affirmed a score of ten points for OV 4
where “the victim testified that she was fearful during the encounter with
defendant,” and People v Bates, unpublished opinion per curiam of the
Court of Appeals, decided February 17, 2004 (Docket No. 244414), where
the defendant was armed with a loaded revolver when he called his
children into the bathroom to say goodbye to their mother, and the Court
stated, “Given the facts of the case, the court could reasonably infer that
the victims suffered serious psychological injuries that may require
professional treatment.”
See also People v Taylor, unpublished opinion per curiam of the Court of
Appeals, decided February 24, 2004 (Docket No. 240344), where the
Court agreed that a change in a victim’s personality and demeanor and her
withdrawal from others after having been assaulted by the defendant was
evidence of “serious psychological injury” for purposes of OV 4.
It appears that evidence substantiating a victim’s psychological harm and

receipt of professional treatment need not be introduced by the victim. See
People v Brown, unpublished opinion per curiam of the Court of Appeals,
decided February 24, 2004 (Docket No. 243961), where OV 4 was
properly scored when the trial court was informed that the victim had
undergone and would continue to undergo psychological counseling for
the “tremendous amount of emotional pain and suffering” caused by the
defendant’s assault.
The statutory language governing OV 4 does not require proof that a

victim has actually sought or received treatment for serious psychological
injury caused by the offender’s conduct. People v Clayton, unpublished
opinion per curiam of the Court of Appeals, decided September 13, 2002
(Docket No. 230328). Where the victim testified that he “was frightened
and nauseous” when he learned that the defendant was HIV-positive at the
time he and the defendant engaged in unprotected sex and that he had been
tested himself “about 40 times” since the incident, the evidence was
sufficient to support the trial court’s conclusion that “the victim appeared
deeply traumatized . . . and needed to seek psychological help.” Id.
The trial court properly scored points against a defendant convicted of *OV 4 under the
robbery where the victim expressed a desire for counseling, exhibited statutory
symptoms of psychological distress, and had requested assistance from guidelines is the
equivalent of
his employer in obtaining treatment. People v Elliott, 215 Mich App 259, OV 13 under
262-263 (1996). The defendant argued that points were improperly the judicial
assessed against him under this variable* because the victim had not guidelines.
received psychological treatment following the robbery. Id. The Court of
Appeals disagreed and stated, “The guidelines reference the necessity for
treatment, not the success of obtaining it.” Id. at 263. The Court further
noted that the defendant should not benefit from the victim’s inability to
afford treatment for the psychological problems caused by the robbery. Id.
Section 8.6
F. OV 5—Psychological Injury to a Member of a Victim’s

Family
OV 5 is scored only under very specific circumstances involving a crime

against a person: when the sentencing offense is homicide, attempted
homicide, conspiracy or solicitation to commit a homicide, or assault with
intent to commit murder. MCL 777.22(1). Score OV 5 by assigning the point
value indicated by the statement that applies to the sentencing offense. MCL
777.35(1).
Points OV 5—Psychological injury sustained by a member of a victim’s family

15 Serious psychological injury requiring professional treatment occurred to a
victim’s family member. MCL 777.35(1)(a).
0 No serious psychological injury requiring professional treatment occurred to a
victim’s family member. MCL 777.35(1)(b).
• Assess 15 points if the family member’s serious psychological

injury may require professional treatment. The fact that treatment
has not been sought is not determinative. MCL 777.35(2).
*See Appendix • Any crime in which the death of a person is an element of the
C for a list of crime is a “homicide.”* MCL 777.1(c).
these offenses.
Points may be appropriate under OV 5 even when family members have a

typical reaction to the death of a family member (trouble sleeping, anxiety
affecting physical health, fear, and devastation) and the effect on the
family members’ lives is not debilitating. People v Chancy, unpublished
opinion per curiam of the Court of Appeals, decided December 14, 2004
(Docket No. 249893).
The mother of a victim killed in a fire that burned over 45 percent of the
victim’s body “could have suffered the type of psychological injury that
may require professional treatment.” People v Strouse, unpublished
opinion per curiam of the Court of Appeals, decided February 4, 2003
(Docket No. 234034). In such a case, 15 points were appropriately scored
when the victim’s mother also expressed her intent to seek counseling for
the psychological harm caused by her son’s murder. Id.
OV 5 was properly scored where the victim was survived by a young child
who would grow up without a mother and where the victim’s
grandmother, grandfather, and uncle provided statements indicating a
number of other “incomprehensible . . . concerns for the family” caused
by the loss. People v Laury, unpublished opinion per curiam of the Court
of Appeals, decided September 23, 2003 (Docket No. 238490).

G. OV 6—Intent to Kill or Injure Another Individual
OV 6 is scored only under very specific circumstances involving a crime

against a person: when the sentencing offense is homicide, attempted
homicide, conspiracy or solicitation to commit a homicide, or assault with
intent to commit murder. MCL 777.22(1). Score OV 6 by determining which
statements apply to the sentencing offense and assigning the point value
indicated by the applicable statement having the highest number of points.
MCL 777.36(1).
Points OV 6—Intent to kill or injure another individual

50 The offender had premeditated intent to kill or the killing was committed while
committing or attempting to commit arson, criminal sexual conduct in the first
or third degree, child abuse in the first degree, a major controlled substance
offense, robbery, breaking and entering of a dwelling, home invasion in the first
or second degree, larceny of any kind, extortion, or kidnapping or the killing
was the murder of a peace officer or a corrections officer. MCL 777.36(1)(a).
25 The offender had unpremeditated intent to kill, the intent to do great bodily
harm, or created a very high risk of death or great bodily harm knowing that
death or great bodily harm was the probable result. MCL 777.36(1)(b).
10 The offender had intent to injure or the killing was committed in an extreme
emotional state caused by an adequate provocation and before a reasonable
amount of time elapsed for the offender to calm or there was gross negligence
amounting to an unreasonable disregard for life. MCL 777.36(1)(c).
0 The offender had no intent to kill or injure. MCL 777.36(1)(d).
• Unless the sentencing court has information that was not presented
to the jury, an offender’s OV 6 score must be consistent with the
jury’s verdict. MCL 777.36(2)(a).
Note: A trial court may properly consider information not

proven beyond a reasonable doubt when scoring offense
variables on which a defendant’s sentence is based. People
v Drohan, 475 Mich 140, 164 (2006). In Drohan, the Court
reaffirmed its assertion in People v Claypool, 470 Mich
715, 730 n 14 (2004), that Michigan’s sentencing scheme
does not violate a defendant’s Sixth Amendment right to
be sentenced on the basis of facts determined by a jury
beyond a reasonable doubt. Drohan, supra at 164. The
Drohan Court’s decision expressly states that Blakely v
Washington, 542 US 296 (2004), United States v Booker,
543 US 220 (2005), and other post-Blakely cases do not
apply to Michigan’s indeterminate sentencing scheme.
Drohan, supra at 157-161. According to the Drohan
Court, Michigan’s sentencing guidelines are not
unconstitutional because trial courts do not use judicially
ascertained facts to impose a sentence greater than the term

Section 8.6
authorized by the jury’s verdict—the statutory maximum.

Id. at 159. The Court explained, “a defendant does not have
a right to anything less than the maximum sentence
authorized by the jury’s verdict, and, therefore, judges may
make certain factual findings to select a specific minimum
sentence from within a defined range.” Id. (citations
omitted).
• Ten points must be scored if a killing is intentional within the

definition of second-degree murder or voluntary manslaughter but
the death took place in a combative situation or in response to the
decedent’s victimization of the offender. MCL 777.36(2)(b).
*See Appendix • Any crime in which a person’s death is an element of the crime is
C for a list of a “homicide.” MCL 777.1(c).
these offenses.
A defendant’s uncorroborated self-serving hearsay is not an effective

challenge to the defendant’s OV 6 score when the record evidence more
than adequately supported the trial court’s scoring decision, and the score
was consistent with the jury’s verdict. People v Jones, unpublished
opinion per curiam of the Court of Appeals, decided July 22, 2003
(Docket No. 238557). In Jones, the defendant claimed OV 6 should have
been scored at ten points rather than 25 because the victim died after
attempting to rob the defendant; however, the evidence showed that the
victim was fleeing from the defendant when he was first struck and then
beaten to death. Id.
*Conduct Where a defendant is convicted by jury of OUIL causing death, a

scored under maximum of ten points may be scored against the defendant under the
OV 6 precludes statutory requirements governing OV 6.* MCL 777.36(1)(c), (2)(a);
scoring ten
points against
People v Stanko, unpublished opinion per curiam of the Court of Appeals,
an offender decided January 27, 2004 (Docket No. 242876). A maximum of ten points
under OV 17 was proper in Stanko because OV 6 must be scored consistently with the
(degree of jury’s verdict unless the sentencing court has information that was not
negligence available to the jury. MCL 777.36(2)(a). Based on the record before the
exhibited). MCL
Court on appeal, and without evidence of malice rising to the level of
777.47(2).
intent required to prove second-degree murder, no more than ten points
could be assessed against the defendant for OV 6. Stanko, supra.

H. OV 7—Aggravated Physical Abuse
OV 7 is scored for crimes against a person only. MCL 777.22(1). Determine

which statement applies to the offense and assign the number of points
indicated by the applicable statement. MCL 777.37(1).
Points OV 7—Aggravated Physical Abuse

50 A victim was treated with sadism, torture, or excessive brutality or conduct
designed to substantially increase the fear and anxiety a victim suffered during
the offense. MCL 777.37(1)(a).
0 No victim was treated with sadism, torture, or excessive brutality or conduct
designed to substantially increase the fear and anxiety a victim suffered during
the offense. MCL 777.37(1)(b).
• Each person placed in danger of injury or loss of life is a victim for

purposes of scoring OV 7. MCL 777.37(2).
• “Sadism” is “conduct that subjects a victim to extreme or

prolonged pain or humiliation and is inflicted to produce suffering
or for the offender’s gratification.” MCL 777.37(3).
• Effective April 22, 2002, 2002 PA 137 deleted “terrorism”* from *“Terrorism” is
OV 7’s list of behaviors meriting points. Although “terrorism” now addressed
by OV 20. MCL
was eliminated from consideration under OV 7, the conduct 777.49a.
previously defined as “terrorism” remains in OV 7’s statutory
language as “conduct designed to substantially increase the fear
and anxiety a victim suffered during the offense.” MCL
777.37(1)(a).
Points may be scored under OV 7 regardless of whether the defendant

personally committed the act on which the OV score is based. People v
Rogers, unpublished opinion per curiam of the Court of Appeals, issued
November 13, 2008 (Docket No. 279521). Because nothing in the
language of MCL 777.37 suggests that the conduct contemplated in OV 7
must be inflicted by the particular offender being sentenced, the
defendant’s score of 50 points for OV 7 (“[a] victim was treated with
terrorism, sadism, torture, or excessive brutality”) was upheld even
though there was no evidence that the defendant personally caused
multiple blunt force injuries to the victim’s head and body.
Actual physical abuse is not necessary to score a defendant’s conduct

under OV 7. People v Mattoon, 271 Mich App 275, 276 (2006). In
Mattoon, the defendant was convicted of various crimes related to an
episode in which he held his girlfriend at gunpoint for nine hours.
Apparently, no actual physical abuse was involved in the incident. Id.
Because the trial court concluded that actual physical abuse was required

Section 8.6
to score a defendant’s conduct under OV 7, the court scored the offense

variable at zero points. Id.
*The Court The Mattoon Court examined the plain language of MCL 777.37 (OV 7)
noted that the and concluded that the Legislature did not intend that actual physical
OV 7 score in abuse be required to support an OV 7 score.* Mattoon, supra at 277-279.
People v
Hornsby, 251
According to the Court:
Mich App 462
(2001),
discussed
below, was “While the label of OV 7 is ‘aggravated physical abuse,’
based on
conduct
when the section is read as a whole, the Legislature does
involving no not require actual physical abuse in order for points to be
actual physical assessed under this variable. Specifically, subsection 3
contact. defines ‘sadism’ to mean ‘conduct’ that, among other
things, subjects the victim to extreme or prolonged
humiliation. While humiliation may have a physical
component, there certainly does not have to be physical
abuse in order to produce humiliation. Emotional or
psychological abuse can certainly have that effect as well.
If the Legislature intended to limit the applicability of OV
7 to cases where there is physical abuse, then instead of
defining ‘sadism’ to be ‘conduct’ that produces pain or
humiliation, it would have said ‘physical abuse’ that
subjects the victim to pain or humiliation.” Id. at 277-278.
The assessment of points under OV 7 does not depend on whether the

victim is alive or conscious of the treatment scored by this variable.
People v Kegler, 268 Mich App 187, 191-192 (2005). Points are properly
scored under OV 7 when a victim is treated with excessive brutality no
matter how (or if) the victim subjectively experiences that treatment.
Although OV 7 does account for a victim’s treatment when the victim is
conscious, its application is not limited to those criminal episodes where
a victim’s consciousness is implicitly required (when points are assessed
for conduct intended to increase a victim’s fear and anxiety). Id.
The defendant was properly assessed 50 points for OV 7 where the

evidence established that he “did more than simply produce a weapon and
demand money.” People v Hornsby, 251 Mich App 462, 469 (2002).
Hornsby was decided before OV 20 dealt with “terrorism” and the
language governing OV 7 still included “terrorism” in its list of behaviors
meriting points under that variable. Notwithstanding the elimination of
the term “terrorism” from the language of OV 7, the variable accounts for
the exact same conduct to which “terrorism” then referred—in its present
version, OV 7 addresses “sadism, torture, or excessive brutality, or
conduct designed to substantially increase the fear and anxiety a victim
suffered during the offense.” MCL 777.37(1)(a) (emphasis added).
The defendant’s conduct in Hornsby was properly characterized as the

type of conduct deserving of 50 points under either version of OV 7. The
shift supervisor testified that the defendant held her at gunpoint behind the
closed door of the manager’s office as she transferred money from the
store’s safe to an envelope. Hornsby, supra at 468. Further testimony

established that the defendant threatened to kill her and everybody else in
the store, and that at one point, the shift supervisor heard the defendant’s
gun click as if it was being cocked when someone began turning the
doorknob to the room she and the defendant occupied. Id. at 469. The
defendant’s repeated threats against the shift supervisor and store
customers and his actions in cocking the gun provided sufficient support
for the trial court’s conclusion that “[the defendant] deliberately engaged
in ‘conduct designed to substantially increase the fear and anxiety a victim
suffers during the offense.’” Id.; MCL 777.37(1)(a).
Fifty points were properly scored against a defendant for the excessive
brutality exhibited by the defendant during the assault of his wife. People
v Wilson, 265 Mich App 386, 398 (2005). “The victim’s testimony
detailed a brutal attack, which took place over several hours, involving
being attacked by weapons and being kicked, punched, slapped, and
choked numerous times, ending in injuries requiring treatment in a
hospital.” Id.
Fifty points were appropriate where “the record indicates that defendant
repeatedly stomped on the victim’s face and chest after the victim was
lying unconscious on the ground. Additionally, the victim was deprived of
oxygen for a period of four to six minutes . . . and currently remains
comatose with little or no chance of ever regaining consciousness.”
People v James, 267 Mich App 675, 680 (2005).
“‘[S]adism’ denotes conduct that exceeds that which is inherent in the

commission of the offense.” People v McReynolds, unpublished opinion
per curiam of the Court of Appeals, issued June 30, 2009 (Docket No.
282582).
Fifty points should be scored for “sadism” when a defendant’s conduct

subjects the victim to extreme or prolonged pain or humiliation and the
conduct is inflicted for the defendant’s gratification. People v Taylor,
February 24, 2004 (Docket No. 240344). The statutory language does not
require that the defendant be gratified by the victim’s pain or humiliation,
only that the defendant’s conduct itself be intended to gratify the
defendant. MCL 777.37(1)(a), (3). Because the defendant performed
sexual acts for his own gratification and those acts caused the victim to
experience extreme humiliation, OV 7 was properly scored at 50 points.
Taylor, supra.
See also People v Hawkins, unpublished opinion per curiam of the Court
of Appeals, decided March 29, 2002 (Docket No. 226718) (before
“terrorism” was eliminated from OV 7’s statutory language). In Hawkins,
the defendant committed the assault while wearing a mask and dark
clothing. He covered the victim’s head and drove her to an undisclosed
location where he bound her hands and covered her eyes with duct tape
and sexually assaulted her. The defendant’s actions were sufficient to
warrant points for engaging in conduct designed to substantially increase
the fear and anxiety suffered by a victim during the offense. Id.

Section 8.6
The statutory language governing OV 7 does not define “excessive

brutality,” but the dictionary definition of the phrase indicates that it
contemplates conduct involving an unusual or unnecessary degree of
cruelty or savagery. People v Jones, unpublished opinion per curiam of
the Court of Appeals, decided July 22, 2003 (Docket No. 238557), citing
Random House Webster’s College Dictionary (1992). According to the
Jones Court, OV 7 reflects a clear legislative intent to vest “the trial courts
of this state with discretion to assess guidelines points for such deaths
along a continuum ranging from one blow resulting in an unanticipated
death to the type of savage, relentless beating the evidence in this case
established.” Id. The Court continued:
“[W]hether the entire incident was measured in minutes or

seconds, the evidence at trial, which showed that defendant
pursued the victim over a distance of 300 feet, and
administered ‘countless’ blows to the victim’s torso and
head until the victim could not move, and ultimately bled
to death from internal injuries, clearly supports the trial
court’s finding of ‘excessive brutality.’” Id (citations
omitted).
For purposes of OV 7, the defendant’s use of “excessive brutality” was

established by evidence that he had hidden a baseball bat in his coat,
confronted and struck the victim without warning so that the victim had
no opportunity to protect himself, and once the victim was down, the
defendant continued to kick and strike the victim with the baseball bat four
or five more times. People v Brown, unpublished opinion per curiam of
the Court of Appeals, decided February 24, 2004 (Docket No. 243961).
It was error to score points against the defendant for OV 2 under the
judicial guidelines (the equivalent of OV 7 under the statutory guidelines)
for “conduct designed to increase substantially the fear and anxiety a
victim suffers during the offense” where the defendant “rather cruelly
raised and carried [the three-year-old victim] by one or more of her limbs”
to another room. People v Dilling, 222 Mich App 44, 55 (1997). The Court
concluded that the defendant’s conduct, while reprehensible and cruel,
was not intended to cause the victim additional fear or anxiety. According
to the Court, the defendant “did not care one way or another about the
girl’s feelings”—the conduct was merely the defendant’s method of
moving the girl from one room to the other. Id.
*OV 7 under the OV 2 under the judicial guidelines* was properly scored where a group of
statutory individuals first threatened to shoot the victim and then displayed several
guidelines. bullets and a cigarette lighter fashioned to look like a handgun. People v
Kreger, 214 Mich App 549, 552 (1995). Said the Kreger Court:
“While defendant argues that the victims were not

‘terrorized,’ OV 2 is properly scored as twenty-five where
conduct designed to substantially increase fear and anxiety

exists. It does not appear necessary that the victims

actually be terror-stricken.” Id (emphasis added).
I. OV 8—Victim Asportation or Captivity
OV 8 is scored for crimes against a person only. MCL 777.22(1). Score OV 8

by determining which statement applies to the sentencing offense and
assigning the point value indicated by the applicable statement. MCL
777.38(1).
Points OV 8—Victim asportation or captivity

15 A victim was asported to another place of greater danger or to a situation of
greater danger or was held captive beyond the time necessary to commit the
offense. MCL 777.38(1)(a).
0 No victim was asported or held captive. MCL 777.38(1)(b).
• Each person in danger of injury or loss of life is a victim for

purposes of scoring OV 8. MCL 777.38(2)(a).
• Zero points must be scored if the sentencing offense is kidnapping.

MCL 777.38(2)(b).
“Asportation” need not be forcible to merit a score under OV 8. People v

Spanke, 254 Mich App 642, 647 (2003). In Spanke, the Court of Appeals
noted that the sentencing guidelines do not define “asportation,” but the
language of OV 8 clearly intends that points be assessed against an
offender if “[a] victim was asported to another place of greater danger or
to a situation of greater danger or was held captive beyond the time
necessary to commit the offense.” MCL 777.38(1)(a); Spanke, supra at
646-647. The Court further discussed “asportation” as the term is used in
defining the offense of kidnapping. Id. at 647. According to MCL
750.349, “asportation” is an element of kidnapping, and “asportation”
occurs when an offender effects “some movement of the victim [] in
furtherance of the kidnapping that is not merely incidental to the
commission of another underlying lesser or coequal crime.” Spanke,
supra at 647, citing People v Green, 228 Mich App 684, 696-697 (1998).
The Court explained that “[w]hile asportation is an element of forcible

kidnapping, there is no requirement that the movement itself be forcible.
Rather, the only requirement for establishing asportation is that the
movement not be incidental to committing an underlying offense.”
Spanke, supra at 647. In Spanke, no force was employed to move the
victims to the defendant’s home—in fact, there was evidence that the
victims may have voluntarily accompanied the defendant to his home. Id.
at 648. The Spanke Court stated that “the crimes could not have occurred
as they did without the movement of defendant and the victims to a
location where they were secreted from observation by others”; thus, the
Section 8.6
movement was more than merely incidental to the commission of the

crime. Id.
Points are appropriately assessed for OV 8 when, although no force was

used, “the victim was transported from her friend’s house in Dearborn to
an unfamiliar house in Hamtramck, where she was involved in sexual
encounters with three men she barely knew.” Apgar, supra at 330.
See also People v Cox, 268 Mich App 440, 454-455 (2005), where OV 8
was properly scored because even though the victim had been to the
defendant’s house on other occasions, the defendant was the individual
who transported the victim to the defendant’s house at the time the sexual
offenses occurred.
Points are appropriate under OV 8 where evidence established that the

defendant and the victim were alone in the car that the defendant had
driven “to what was described as a two-track road in an isolated area near
a river,” and the defendant parked the car so it faced away from the road.
People v Phillips, 251 Mich App 100, 108 (2002).
*Unpublished See also People v Steele, 283 Mich App 472, 490-491 (2009) (“places
opinions are not where others [a]re less likely to see [a] defendant commit[] crimes,” e.g.,
precedentially a trailer on the defendant’s property, a tree stand on the defendant’s
binding under
the rule of stare
property, and a dirt bike ridden “far away from the house,” constitute
decisis. MCR places or situations of greater danger under MCL 777.38(1)(a)).
7.215(C)(1).
Points are appropriately assessed under OV 8 even if the defendant does
not directly engage in the conduct that led to the scoring decision. People
v Moncivais, unpublished opinion per curiam of the Court of Appeals,
issued May 1, 2008 (Docket No. 276992).* In Moncivais, supra, the
defendant drove a friend to rob a carwash. During the robbery the friend
forced two employees to enter a separate room. The trial court scored 15
points for OV 8 (which is appropriate when a victim is asported to another
place or situation of greater danger or was held captive beyond the time
necessary to commit the offense). The defendant objected on the ground
that he did not directly engage in the conduct that led to the scoring
decision and argued that all offenders in a multiple offender situation
should not be assessed the same score for OV 8. Id. The Court of Appeals
concluded that the plain language of MCL 777.38(1) “directs the court to
consider the victims’ situation and circumstances during the offense
without regard to which offender participated in the relevant conduct.”
Moncivais, supra. The Court of Appeals declined to read limiting
language into the statute and reasoned that “[w]hile the instructions do not
expressly require the court to impose the same score for all offenders in a
multiple offender case, they do not require the court to consider only the
individual who personally committed the acts leading to the scoring
decision.” Id.
The “confined and private environment inside the back room [where the
defendant ordered the complainants to lay face down] was a place of
greater danger than the main shopping area of the store.” People v
Gholston, unpublished opinion per curiam of the Court of Appeals,
In People v Hack, 219 Mich App 299, 313 (1996), the trial court assessed
points against a defendant under OV 5 (the equivalent of OV 8 under the
statutory guidelines) where the evidence established that the defendant
moved the child-victims to a different area of the house and away from the
mother of one victim. Hack, supra at 313. The child’s mother testified that
she could not see into the bedroom where the defendant had taken the
victims and did not know what was happening during the time she was
separated from the children. Id. The Court agreed with the trial court that
the children were in greater danger when they were removed from the
room occupied by one victim’s mother; therefore, points were properly
assessed against the defendant for OV 5. Id. See also People v Dilling, 222
Mich App 44, 54-55 (1997) (same result regarding OV 5 score for
codefendant involved in the same offense for which the defendant in Hack
was convicted).
OV 5 was properly scored under the judicial guidelines* where the *OV 8 under the
defendant first forced the victim at knifepoint into a bathroom and later, statutory
again at knifepoint, forced the victim out of the bathroom and into a guidelines.
bedroom where the defendant bound and gagged the victim. People v
Piotrowski, 211 Mich App 527, 529 (1995). In Piotrowski, the Court
concluded that the defendant’s actions in “removing the victim from the
relative safety of the bathroom [where she was alone]” to a room in which
the victim was bound and gagged constituted “moving a victim to a place
of greater danger” for purposes of scoring OV 5. Piotrowski, supra at 529.
J. OV 9—Number of Victims
OV 9 is scored for all felony offenses except crimes involving a controlled

substance. MCL 777.22(1), (2), (4), and (5). Determine which statements in
OV 9 apply to the offense and assign the point value indicated by the
applicable statement having the highest number of points. MCL 777.39(1).
Points OV 9—Number of victims

100 Multiple deaths occurred. MCL 777.39(1)(a).
25 10 or more victims were placed in danger of physical injury or death.
20 or more victims were placed in danger of property loss. MCL 777.39(1)(b).
10 2 to 9 victims were placed in danger of physical injury or death.
4 to 19 victims were placed in danger of property loss. MCL 777.39(1)(c).
0 Fewer than 2 victims were placed in danger of physical injury or death.
Fewer than 4 victims were placed in danger of property loss.
MCL 777.39(1)(d).
• Each person placed in danger of physical injury, death, or loss of

property is a victim for purposes of scoring OV 9. MCL
777.39(2)(a).

Section 8.6
*Loss of In most cases when scoring OV 9, only people placed in danger of injury
property was or loss of life or property* during conduct “relating to the [sentencing]
added to the offense” (or conduct occurring during the same criminal transaction)
circumstances
in OV 9 by 2006
should be considered. People v Sargent, 481 Mich 346, 349-350 (2008).
PA 548, In Sargent, supra at 347, the defendant was convicted of sexually abusing
effective March a teenager. At trial, evidence was introduced that the defendant also
30, 2007. sexually abused the victim’s sister on a separate occasion. Id. The
Supreme Court found that the sentencing court erred in assessing 10
points for OV 9 (two to nine victims) on the basis that there were two
victims: the victim and the victim’s sister. Id. at 347-348, 351. The Court
noted that although “the Legislature has explicitly stated that conduct not
related to the offense being scored can be considered when scoring some
offense variables,” OV 9 is not among those variables. Id. at 350.
Therefore, the Court held that zero points should have been assessed
because the defendant was not convicted of sexually abusing the victim’s
sister, and because the defendant’s sexual abuse of the sister did not arise
out of the same transaction as the abuse of the victim. Id. at 351.
See also People v McGraw, 484 Mich 120, 122, 133-135 (2009), where
the Supreme Court held that “a defendant’s conduct after an offense is
completed does not relate back to the sentencing offense for purposes of
scoring offense variables unless a variable specifically instructs
otherwise.” In McGraw, the defendant’s flight from the police after
breaking and entering an unoccupied building was an impermissible basis
for scoring the number of victims under OV 9, because OV 9 does not
expressly authorize the consideration of conduct that occurs after the
sentencing offense is completed.
OV 9 was properly scored at ten points (two to nine victims) where the
defendant shot a bystander who attempted to aid the armed robbery
victim. People v Morson, 471 Mich 248, 261-262 (2004).
OV 9 was correctly scored at ten points (two to nine victims) where the
decedent, her fiance, and her child were with her in the car when the
defendant fatally shot the decedent through the car’s windshield. People v
Kimble, 252 Mich App 269, 274 (2002), aff’d on other grounds 470 Mich
305 (2004).
Ten points were appropriate under OV 9 where videotaped evidence

showed a female victim and a male victim actually being harmed, or being
placed in danger of injury, as a result of the defendant’s conduct. People
v Wilkens, 267 Mich App 728, 741-742 (2005).
See also People v Houck, unpublished opinion per curiam of the Court of
Appeals, issued July 23, 2009 (Docket No. 285203), where OV 9 was
improperly scored at 25 points for the crime of using a computer to
produce child sexually abusive material, when the circuit court counted as
victims the children depicted in thousands of pornographic images that the
defendant downloaded from the internet and copied onto discs. Because
the defendant did not have any contact with the children, he did not place

them “in danger of physical injury or loss of life” (MCL 777.39(2)(a));

therefore, the correct score for OV 9 was zero points. Id.
OV 9 was improperly scored at ten points where, even though the *See Section
defendant was charged with gross indecency involving the victim and two 8.6(J)(3).
other minors on a different occasion, the instance of CSC-1 for which the
defendant was being sentenced only involved one of the girls. People v
Gullett, 277 Mich App 214, 217-218 (2007). The Gullett Court applied
People v Chesebro, 206 Mich App 468, 471 (1994),* which held that “the
calculation of victims [is] limited to those victims involved in the specific
transaction that gave rise to the particular conviction for which sentence
is being imposed.” Gullett, supra at 217. According to the Gullett Court,
where the record revealed that the defendant was convicted and sentenced
on only one charge of CSC-1 involving a single victim, the sentencing
court erred in assessing points for OV 9 based on the number of victims
involved in a separate incident. Id. at 218.
Unless the instructions specifically direct that the number of victims under *See e.g., MCL
OV 9 is to be calculated in the aggregate for offenses other than the 777.44(2)(a)—
sentencing offense,* the victims counted should be only those in danger OV 14, the
offender’s
of injury or death as a result of the sentencing offense. People v Holmes, role—where the
unpublished opinion per curiam of the Court of Appeals, decided March instructions
11, 2003 (Docket No. 235213), citing People v Chesebro, 206 Mich App clearly indicate
468, 472-473 (1994) (discussed below). In Holmes, although the that the variable
defendant was convicted of five counts of uttering and publishing, the is to be scored
based on the
number of victims under OV 9 should have been determined by the
entire criminal
number of victims for each particular conviction—not the sum total of transaction.
victims involved in all five convictions. Holmes, supra. Consequently,
OV 9 should have been scored at ten points where the person to whom the
defendant gave a forged check was one victim and the bank on which the
check was drawn was the second victim. Id.
Compare Holmes, above, to the following case where a defendant was

properly scored ten points for OV 9 where he was convicted of one count
of receiving and concealing stolen property but the items stolen came
from three separate home invasions. People v Clark, unpublished opinion
per curiam of the Court of Appeals, decided October 2, 2003 (Docket No.
240139). Based on the Knowles Court’s ruling that “injury” included
financial injury for purposes of determining the number of victims in
danger of injury during an offense, the Clark Court concluded that
property loss is also an “injury” appropriately considered under OV 9.
Clark, supra, citing Knowles, supra at 61-63.
The three individuals who occupied a vehicle passed by the defendant’s

car before it struck the decedent were properly counted as victims for
purposes of scoring OV 9. People v Smith, unpublished opinion per
curiam of the Court of Appeals, decided February 25, 2003 (Docket No.
229137). MCL 777.39(2)(a) clearly defines a “victim” as “each person
who is placed in danger of injury or loss of life.” In Smith, the trial court
correctly concluded there were four victims—the decedent, the driver of
the second car, and the driver’s two children. Id. The Court noted that
“[the second driver] testified that defendant pulled up behind her out of

Section 8.6
nowhere, driving at a high rate of speed, swerved to her right, hit [the
decedent], then cut back in front of her.” Id.
OV 9 must not be construed so broadly that the mere possibility that other
individuals might stumble into a dangerous situation qualifies those
individuals as victims under this variable. People v Shulick, unpublished
opinion per curiam of the Court of Appeals, decided November 4, 2003
(Docket No. 240343). In Shulick, the defendant killed the victim
following an altercation involving the victim and three individuals with
the victim on his boat. The trial court, however, scored OV 9 for ten or
more victims because the victim’s actual boating party consisted of ten
people, all but three of whom had already retired to other boats at the time
of the altercation. According to the trial court, OV 9 was properly scored
because “any of the people on the four boats within the victim’s party
could have come out of their boats if they heard defendant approach.” Id.
The Court of Appeals found that the trial court’s explanation required too
broad a reading of OV 9, a reading that “would warrant a finding that
anyone in defendant’s path from his apartment to the marina” could have
qualified as a victim had they come out when they heard the defendant. Id.
OV 9 was properly scored when at least two individuals other than the
cashier from whom the defendant took money saw the defendant and his
gun at the cash register in front of the restaurant. People v Arney,
unpublished opinion per curiam of the Court of Appeals, decided March
20, 2003 (Docket No. 236875). In addition to the cashier’s husband and
one waitress, there were other restaurant patrons placed in danger of injury
because of their physical proximity to the robbery and the defendant’s
weapon. Id.
A defendant’s written threats to harm three men (and their wives and
children) involved in his previous convictions unless the men met the
defendant’s demand for money, placed the three men and their families
“in danger of injury or loss of life” for purposes of OV 9. People v
Morrison, unpublished opinion per curiam of the Court of Appeals,
decided March 18, 2003 (Docket No. 233455).
The number of victims properly included the victim’s wife and children
who, although they occupied a different room of the house than did the
defendant and the victim, were “placed in danger of injury or loss of life”
when the defendant fired multiple shots in the victim’s home. People v
Williams, unpublished opinion per curiam of the Court of Appeals,
decided May 20, 2003 (Docket No. 230566).
Under the judicial guidelines, OV 6 (the equivalent of OV 9 under the

statutory guidelines) addressed the number of victims placed in danger
during an offense, and this factor was addressed by the Court of Appeals
in Chesebro, supra at 468. The Chesebro Court agreed with the
defendant’s argument that the number of victims appropriately considered
under this variable must be limited to the victims placed in danger by the
sentencing offense alone. The Court explained:

“[T]he offense variables are to be scored only with respect

to the specific criminal transaction that gives rise to the
conviction for which the defendant is being sentenced
unless the instructions for a variable specifically and
explicitly direct the trial court to do otherwise.” Id. at 471.
According to the Court, any other application of the variable would lead
to absurd results—an offender’s prior conduct could be considered and
scored under OVs without regard to the conduct’s relevance to the
sentencing offense. Id.
K. OV 10—Exploitation of a Vulnerable Victim
OV 10 is scored for all felony offenses except crimes involving a controlled

substance. MCL 777.22(1), (2), (4), and (5). Score OV 10 by determining
which statements apply to the circumstances of the sentencing offense and
assigning the point value indicated by the applicable statement having the
highest number of points. MCL 777.40(1).
Points OV 10—Exploitation of a victim’s vulnerability

15 Predatory conduct was involved. MCL 777.40(1)(a).
10 The offender exploited a victim’s physical disability, mental disability, youth or
agedness, or a domestic relationship or the offender abused his or her authority
status. MCL 777.40(1)(b).
5 The offender exploited a victim by his or her difference in size or strength, or
both, or exploited a victim who was intoxicated, under the influence of drugs,
asleep, or unconscious. MCL 777.40(1)(c).
0 The offender did not exploit a victim’s vulnerability. MCL 777.40(1)(d).
• Do not automatically score points for victim vulnerability just

because one or more of the factors addressed by OV 10 are present
in the circumstances surrounding the sentencing offense. MCL
777.40(2).
• “Predatory conduct” is an offender’s preoffense conduct directed

at a victim for the primary purpose of victimization. MCL
777.40(3)(a).
• To “exploit” a victim is to manipulate a victim for the offender’s

selfish or unethical purposes. MCL 777.40(3)(b).
• A victim’s “vulnerability” is the victim’s readily apparent

susceptibility to injury, physical restraint, persuasion, or
temptation. MCL 777.40(3)(c).
• “Abuse of authority status” means the offender used a victim’s

fear of or deference to an authority figure to exploit the victim.

Section 8.6
Examples of an authority figure include, but are not limited to, a

teacher, parent, or physician. MCL 777.40(3)(d).
• Exploitation of a vulnerable victim is a prerequisite to assessing

points under OV 10. People v Cannon, 481 Mich 152, 162 (2008).
Fifteen points should only be assessed under OV 10 “when it is
readily apparent that a victim was ‘vulnerable,’ i.e., was
susceptible to injury, physical restraint, persuasion, or
temptation,” and when exploitation occurred, i.e., “when the
defendant has engaged in [preoffense] conduct that is considered
predatory under [MCL 777.40].” Cannon, supra at 158-159.
“[R]egardless of an offender’s subjective intent, if no vulnerable
victim was in fact placed in jeopardy or exploited by an offender’s
actions, OV 10 does not apply.” People v Russell (On Remand),
281 Mich App 610, 615 (2008) (police decoy posed as a 14-year-
old victim during internet communications with the defendant).
To determine whether 15 points may be properly assessed under
OV 10, trial courts should make the following inquiries:
“(1) Did the offender engage in conduct before the

commission of the offense?
“(2) Was this conduct directed at one or more specific

victims who suffered from a readily apparent susceptibility
to injury, physical restraint, persuasion, or temptation?
“(3) Was victimization the offender’s primary purpose for

engaging in the preoffense conduct?”
If a trial court can answer “yes” to all of the above questions, the
offender engaged in predatory conduct under MCL 777.40, and
the court may properly assess 15 points for OV 10. Cannon, supra
at 162.
See People v Steele, 283 Mich App 472, 491-492 (2009), where the Court
employed the three-part test for predatory conduct delineated in People v
Cannon, 481 Mich 152, 158-159 (2008) (trial court properly assessed 15
points for OV 10 where: (1) the victims testified that numerous sexual
assaults occurred for an extended period of time before commission of the
sentencing offense; (2) the defendant groomed the victims, who were his
young adopted grandchildren; and (3) the grooming was done for the
purpose of desensitizing the victims in order to escalate his victimization
of them over time).
See also People v Houck, unpublished opinion per curiam of the Court of
Appeals, issued July 23, 2009 (Docket No. 285203) (trial court
improperly assessed 15 points for OV 10 where the girls at whom the
defendant’s grooming was directed were not victims of the criminal
activity for which the defendant was ultimately convicted).

Abuse of authority status. Where the defendant argued that OV 10 was

improperly scored because no evidence was presented “to indicate any
manipulation by defendant or any exploitation of his status,” ten points
were correctly assessed against the 67-year-old defendant, who was in the
process of adopting the 14-year-old victim at the time he sexually
assaulted her. People v Phillips, 251 Mich App 100, 109 (2002).
Ten points are proper only where the defendant has exploited a victim’s
vulnerability; that is, when the defendant “exploit[s] a victim’s physical
disability, mental disability, youth or agedness, or a domestic relationship
or the offender abused his or her authority status.” MCL 777.40(1)(b). Ten
points were not proper when the score was based on the fact that the
defendant’s two children were passengers in the defendant’s car when she
drove through a flashing red light and killed the driver of another vehicle.
People v Hindman, 472 Mich 875 (2005), reversing the unpublished
opinion per curiam of the Court of Appeals, decided January 22, 2004
(Docket No. 244904). It was error for the trial court to assess points under
OV 10, “not on the basis of having exploited the second-degree murder
victim, but on the basis of having exploited her own children who were
merely passengers in her car and not the victims of the criminal offense
being scored.” Id.
For purposes of OV 10, a “domestic relationship” is not satisfied by proof

that the defendant and the victim shared “some kind” of relationship. In
the context of scoring OV 10, the defendant and the victim must have a
“familial or cohabitating relationship.” People v Counts, unpublished
opinion per curiam of the Court of Appeals, decided May 20, 2004
(Docket No. 246717). If any relationship could qualify under OV 10, the
Legislature need not have specified “domestic.” Id. Further, OV 10
requires not only the existence of the domestic relationship—points are
appropriate only when the defendant exploits that relationship. Id.
OV 10 may be scored against a defendant who was “playing the uncle

role” to his sister’s children and was “invested with the authority to
enforce [the children’s mother’s] directives regarding the disciplining of
her children.” People v Loney, unpublished opinion per curiam of the
Court of Appeals, decided March 16, 2004 (Docket No. 243416).
Vulnerability—age of the victim. In the context of the defendant’s claim

of ineffective assistance of counsel, the Court of Appeals refused to adopt
the defendant’s argument that OV 10 was improperly scored because
“despite the girls’ young ages in this case, there was no evidence that they
were vulnerable or that he exploited them.” People v Harmon, 248 Mich
App 522, 531 (2001). The defendant relied on the statutory language
contained in MCL 777.40(2), which provides that “[t]he mere existence of
1 or more factors described in subsection (1) does not automatically
equate with victim vulnerability.” Harmon, supra at 531. Contrary to the
defendant’s argument that the young girls participated in his photography
sessions without coercive or exploitive conduct on his part, the evidence
established that the defendant manipulated the victims based on their age,
their financial need, and their aspiration to become models. Id. at 531-532.
Section 8.6
A five-year age difference between a defendant and a complainant may

justify a score of ten points for OV 10. People v Johnson, 474 Mich 96,
103 (2006). In Johnson, the Michigan Supreme Court stated:
“We also agree that the trial court did not err in scoring OV
10 at ten points. . . . As the Court of Appeals explained,
‘[w]here complainant was fifteen years old and defendant
was twenty, the court could determine that defendant
exploited the victim’s youth in committing the sexual
assault [citation omitted].’” Id. at 103.
Points were appropriate under OV 10 where the “defendant ‘exploited’ the

victim’s youth by manipulating her with clothes and alcohol in exchange
for [her participation in] making the sexually abusive videotape.” People
v Wilkens, 267 Mich App 728, 742 (2005).
Vulnerability—victim was asleep. Contrary to the defendant’s argument

that the victims would have been at greater risk of confrontation and
possible injury—and therefore, more vulnerable for purposes of OV 10—
had the victims been awake at the time the defendant broke into the
victims’ home, five points were properly scored against a defendant for
exploitation of a victim’s vulnerability when the crime was committed
while the victim was asleep. People v Markel, unpublished opinion per
curiam of the Court of Appeals, decided February 19, 2004 (Docket No.
245141). The Court explained:
“Common knowledge dictates that a person becomes more

vulnerable to a home invasion at night because the intruder
is exploiting the fact that the homeowner is most likely
asleep and will not hear the intrusion, thus increasing the
chances that the home invasion will be successfully
accomplished by the intruder.” Id.
Predatory conduct.The trial court properly scored 15 points against the

defendant for predatory conduct under OV 10 where the evidence
established that the defendant and his accomplices drove around looking
for a car from which they could steal a set of expensive wheel rims,
spotted the victim’s car and its valuable wheel rims, followed the victim’s
car to the victim’s home, watched the victim pull her car into the
driveway, shot the victim, and stole her car. Kimble, supra at 274-275.
The timing and location of an offense is evidence that the defendant

watched and waited for an opportunity to commit the criminal act, and
watching and waiting for an opportunity to commit a crime is “predatory
conduct” for which the defendant was appropriately assessed 15 points
under OV 10. People v Witherspoon (After Remand), 257 Mich App 329,
336 (2003). In Witherspoon, the third-grade victim testified that the
defendant assaulted her when she was alone in the basement folding
clothes. Id. Relying on Kimble, supra, the Court noted that the defendant’s
timing (when the victim was alone) and his choice of location (an isolated
room of the house, the basement) was sufficient to establish predatory

conduct similar to the defendant’s conduct in Kimble. Witherspoon, supra

at 336. The Witherspoon Court expressed its disapproval of the trial
court’s statement that “all sex offenses are predatory”; however, the Court
acknowledged that notwithstanding the court’s erroneous reasoning, the
trial court reached the right result. Id. at 335.
A defendant who made a concerted effort to befriend the victim and gain
her trust before he sexually assaulted her engaged in “predatory conduct”
for purposes of scoring OV 10. People v Cornett, unpublished opinion per
curiam of the Court of Appeals, decided April 3, 2003 (Docket No.
233958). In Cornett, the defendant approached the victim when she
appeared in court on a criminal charge in which the defendant had acted
as one of the investigating officers. The defendant got the victim’s
attention as she drove away from the courthouse and motioned for her to
pull into a nearby parking lot. Id. He met her in the parking lot, asked
questions about her criminal case, offered his assistance if she needed it,
and gave her his pager number. Id. On the day of the incident, the
defendant was seen in uniform in a marked police vehicle outside the
victim’s house, and when the victim paged the defendant, he waited until
he completed his work shift before responding. Id.
Fifteen points were proper where the trial court found the victim’s
vulnerability “readily apparent” from observing the victim’s demeanor
and where the defendant engaged in predatory conduct. Drohan, supra at
90-91. Evidence showed that the victim confided in the defendant, and the
defendant took advantage of her vulnerability by approaching her on
numerous occasions and waiting for her in a parking structure before the
sexual assault. Id.
Preoffense conduct is properly scored for purposes of OV 10 if “the *See, e.g.,

conduct [was] ‘directed at a victim’ before the offense was committed.” People v
People v Cannon, 481 Mich 152, 160 (2008).* In Cannon, the trial court Kimble, 252
Mich App 269
assessed 15 points for OV 10 because the defendants “wait[ed] in a truck (2002), aff’d on
at a neighboring business until no customers remained in the restaurant, other grounds
then committ[ed] the robbery.” Id. at 155. The Court concluded that the 470 Mich 305
trial court did not consider the defendants’ conduct in the manner intended (2004).
by the Legislature and remanded the case to the trial court for
reconsideration in light of the Court’s opinion. Id. at 163. The Court noted
that points are not to be assessed for OV 10 when an offender’s
“preoffense conduct involv[es] nothing more than run-of-the-mill
planning to effect a crime or subsequent escape without detection.” Id. at
162. The Court further provided the following example:
“A lion that waits near a watering hole hoping that a herd

of antelope will come to drink is not engaging in conduct
directed at a victim. However, a lion that sees antelope,
determines which is the weakest, and stalks it until the
opportunity arises to attack it engages in conduct directed
at a victim. Contrast that with an individual who intends to
shoplift and watches and waits for the opportunity to
commit the act when no one is looking. The individual has
not directed any action at a victim.” Id. at 160.

Section 8.6
See also People v Cox, 268 Mich App 440, 442, 455 (2005), where points
were properly scored for predatory or preoffense conduct when the
defendant engaged in sexual conduct with “a seventeen-year-old mentally
incapable victim.” In addition to the questions concerning the victim’s
mental status, evidence established that the defendant visited the victim at
his foster home, the victim had been to the defendant’s home on several
occasions and had viewed pornographic material there, and the “defendant
admitted to harboring the victim as a runaway from a foster home.” Id. at
446-447, 455.
Points for predatory conduct may not be assessed for OV 10 where the
victim was a police decoy, because “regardless of [the] defendant’s intent,
[the defendant’s] conduct did not place any vulnerable victim at jeopardy
as there was, in fact, no vulnerable victim to be jeopardized.” People v
Russell (On Remand), 281 Mich App 610, 615 (2008). In Russell, supra
at 612, the “[d]efendant communicated over the Internet with a person he
thought was a 14-year-old girl named ‘Kelly,’ but who in fact was an adult
male special agent for the Attorney General.” The “[d]efendant engaged
in explicit sexual conversations with ‘Kelly,’ sent ‘her’ nude photographs
of himself, and eventually arranged to meet ‘her’ for the purpose of
engaging in sexual activity.” Id. Because “[t]he person with whom [the]
defendant communicated was not a vulnerable 14-year-old girl named
‘Kelly’; [but] was, instead, an adult special agent . . . . [The agent did] not
qualify as a vulnerable victim under the factors set out in [People v]
Cannon[, 481 Mich 152, 158-159 (2008)].” Russell, supra at 615.
Accordingly, no points could be assessed against the defendant under OV
10. Id. Further, even if points could be assessed under OV 10, a score of
15 points for predatory conduct would be inappropriate because the
“[d]efendant’s interactions on the Internet . . . constituted the offenses
themselves; there was no preoffense conduct . . . .” Id. at 615 n 2.
Fifteen points were not appropriate where the defendant’s pre-offense

conduct was not directed at a specific victim, and no evidence supported
the idea that the defendant followed or waited for the victim. People v
Parnell, unpublished opinion per curiam of the Court of Appeals, decided
July 29, 2004 (Docket No. 248236).
But see People v Hawkins, unpublished opinion per curiam of the Court
of Appeals, decided March 29, 2002 (Docket No. 226718), where the
Court determined that points may be appropriate under OV 10 when a
defendant engages in pre-offense conduct directed at an as-yet-
unidentified victim; predatory conduct need not be directed exclusively at
the victim involved in the sentencing offense. The language governing
OV 10 “does not state that the pre-offense conduct be directed at a specific
victim chosen before the offense occurs.” Id.; MCL 777.40.
Aggregate circumstances. Ten points were appropriate where the

defendant took advantage of his minor victim’s intoxication, and the
defendant was the person who provided the minor with alcohol. People v
Krause, unpublished opinion per curiam of the Court of Appeals, decided
August 10, 2004 (Docket No. 246896).

Where the defendant “groomed” his 13-year-old victim with flattery,

sexual comments, alcohol, and marijuana before exploiting her
incapacitated state to sexually assault her, the defendant has engaged in
“predatory conduct” as contemplated by OV 10. People v Taylor,
February 24, 2004 (Docket No. 240344).
OV 7 (OV 10 under the statutory guidelines) differentiates between an *The same

offender’s exploitation of a victim due to a difference in size or strength point values are
and exploitation of a victim based on agedness. People v Piotrowski, 211 assigned to OV
10 under the
Mich App 527, 531 (1995). In Piotrowski, the defendant argued that her statutory
treatment of the victim was not the result of age-based exploitation; guidelines.
instead, according to the defendant, she would have subjected the victim
to the same treatment regardless of the victim’s age. Id. The Court
disagreed and emphasized the point values corresponding to an offender’s
exploitation due to strength or size (5 points) and an offender’s
exploitation due to age (15 points).* Id. The Court further explained:
“We take this [point differential] to be an explicit

recognition of the distinction between the decline in
physical strength characteristic of advanced age, and the
less easily articulated decline in aggressiveness in
confrontational situations that also often accompanies
advancing years. To fail to recognize this distinction would
render nugatory OV 7 in the context of elderly victims,
since virtually all exploitation of agedness would be
ascribed to exploitation of physical infirmity, meaning that
those who prey on the aged would receive more lenient
sentences than recommended by the guidelines. The
guidelines recognize and address exploitation of our senior
citizens.
“In the present case, defendant did not shout, “I am

exploiting you because you are a senior citizen.” In our
opinion, there was no need for defendant to so state her
motivation; her actions clearly manifested such a
motivation. Had the victim been twenty-eight rather than
seventy-eight, regardless of her physical strength, we find
it unlikely that she would have been all but forgotten in a
bathroom, fearing for her life the entire fifteen minutes,
while her knife-wielding assailant leisurely inventoried her
possessions. In other words, had defendant not
immediately dismissed the possibility that the elderly
victim would offer any resistance, which dismissal can
only be attributed to her age, we believe that the victim
would have been terrorized for a far shorter period of
time.” Id.

Section 8.6
L. OV 11—Criminal Sexual Penetration
OV 11 is scored for crimes against a person only. MCL 777.22(1). Determine

which statements addressed by OV 11 apply to the offense and assign the
point value indicated by the applicable statement having the highest number
of points. MCL 777.41(1).
Points OV 11—Criminal sexual penetration

50 Two or more criminal sexual penetrations occurred. MCL 777.41(1)(a).
25 One criminal sexual penetration occurred. MCL 777.41(1)(b).
0 No criminal sexual penetrations occurred. MCL 777.41(1)(c).
• All sexual penetrations of the victim by the offender arising out of

the sentencing offense must be counted in scoring OV 11. MCL
777.41(2)(a).
*OV 12 • Multiple sexual penetrations of the victim by the offender
addresses occurring beyond the sentencing offense may be scored in OVs 12
criminal acts
that occur within
or 13.* MCL 777.41(2)(b). However, if any conduct is scored
24 hours of the under this variable, that conduct must not be scored under OV 12
sentencing and may only be scored under OV 13 if the conduct is related to
offense and will the offender’s membership in an organized criminal group. MCL
not result in a
separate 777.42(2)(c); MCL 777.43(2)(c).
conviction. OV
13 accounts for • The one penetration on which a first- or third-degree criminal
an offender’s sexual conduct offense is based must not be counted for purposes
pattern of of scoring OV 11. MCL 777.41(2)(c).
criminal
conduct over a
period of five
years
regardless of Sexual penetrations that form the basis of a conviction separate from the
outcome. sentencing offense are not precluded from consideration under OV 11.
People v McLaughlin, 258 Mich App 635, 676 (2003). In McLaughlin, the
defendant argued he was improperly scored 50 points for two penetrations
when those penetrations resulted in separate first-degree criminal sexual
conduct (CSC) convictions. Id. at 671. According to the defendant, the
instructions for OV 11 prohibited scoring points for any penetration that
formed the basis of a separate first- or third-degree CSC conviction. Id. at
672. Because the victim testified to three penetrations and the defendant
was convicted of three counts of first-degree CSC, the defendant argued
that each penetration was the basis of its own conviction and could not be
used in scoring the other convictions. Id.
In reaching its conclusion, the McLaughlin Court acknowledged that the

language within MCL 777.41(2)(c) was ambiguous and capable of more
than one reasonable interpretation. McLaughlin, supra at 674-675. As the
defendant suggested, MCL 777.41(2)(c) could be read to prohibit scoring
the penetration forming the basis of any first- or third-degree CSC
conviction. McLaughlin, supra at 675. In that case, however, the Court of

Appeals noted that OV 11 would be scored at zero in each case where all
sexual penetrations arising out of the sentencing offense were themselves
the basis of a separate conviction, a result that “would [] encourage
departures from the statutory sentencing guidelines because no other
variable accounts for multiple convictions involving criminal sexual
penetrations that do not give rise to a continuing pattern of criminal
behavior.” Id. at 677.
Finally, the McLaughlin Court emphasized that the Legislature, had it

intended that OV 11 count only those penetrations not resulting in a
criminal charge or conviction, could have easily included the language
necessary to express such a limit. Id. The Court specifically noted
language in MCL 777.42(2)(a)(ii) limiting that provision’s applicability to
contemporaneous felonious acts that “ha[ve] not and will not result in a
separate conviction.” McLaughlin, supra at 677. See also People v
Matuszak, 263 Mich App 42 (2004) (50 points were appropriate under OV
11 where there was evidence of five penetrations).
OV 11 was properly scored at 25 points in Count 1 “because defendant

was charged with only one penetration, yet he penetrated the female
victim more than once during the making of the videotape” (evidence
showed that the defendant penetrated the victim with his mouth and with
a sex toy). People v Wilkens, 267 Mich App 728, 742-743 (2005). OV 11
was also properly scored at 25 points in Count 2 where the evidence
established that, in addition to at least one other penetration, the defendant
aided and abetted the male victim’s penetration of the female victim. Id.
at 743.
See also People v Cox, 268 Mich App 440, 455-456 (2005), where the
Court of Appeals affirmed an OV 11 score of 25 points for one penetration
even when the defendant was convicted of two counts of CSC-1 for the
two penetrations arising from the sentencing offense. According to the
Court, “the proper interpretation of OV 11 requires the trial court to
exclude the one penetration forming the basis of the offense when the
sentencing offense itself is CSC-1 or CSC-3.” Id. at 456.
In People v Johnson, 474 Mich 96, 99-103 (2006), the Michigan Supreme
Court further defined OV 11 as applied to cases in which a defendant is
convicted of more than one count of first-degree criminal sexual conduct
(CSC-1). In Johnson, supra at 99-100, the trial court scored OV 11 at 25
points because the defendant had twice penetrated the victim. Like the
defendant in Cox, supra, the defendant in Johnson was charged with and
convicted of CSC-1 for each penetration. Johnson, supra at 98. In Cox,
supra at 455-456, 25 points were appropriately scored because the two
penetrations/convictions arose from the same sentencing offense. In
contrast to Cox, however, neither of the penetrations in Johnson arose
from the same sentencing offense. Johnson, supra at 101-102. In Johnson,
the penetrations occurred on different dates. Id. at 102. In the absence of
any evidence that the defendant’s conduct on one date arose from his
conduct on the other date, the two penetrations did not arise from either of
the two CSC-1 offenses for which the defendant was sentenced. Id.
Therefore, because the two penetrations in Johnson did not arise from the
Section 8.6
sentencing offense, the trial court erred in scoring OV 11 at 25 points

instead of 0 points. Id.
Under the judicial sentencing guidelines, OV 12 accounted for the

conduct now addressed by OV 11 under the statutory guidelines. In
People v Cotton, 209 Mich App 82, 84 (1995), the defendant argued that
the trial court improperly scored OV 12 at 25 points because both of the
penetrations for which he was scored resulted in separate convictions.
With the exception of the current statutory language specifying that points
should not be scored under OV 11 “for the 1 penetration that forms the
basis of a first- or third-degree criminal sexual conduct offense,” the
instructions for scoring this variable under the judicial guidelines mirrored
the statutory instructions. Id.; MCL 777.41(1)(c). The Cotton Court
explained:
“The sentencing guidelines instructions regarding the

scoring of this variable do not prohibit a trial court from
scoring a second penetration that arises from the same
criminal transaction simply because the second penetration
results in a separate conviction. The instructions for OV 12
indicate that all penetrations that arise out of the same
criminal transaction, except the one penetration forming
the basis of the conviction, are to be scored. Any other
interpretation, including the one urged by defendant, could
result in shorter concurrent sentences for defendants with
multiple convictions arising out of the same transaction
than for defendants who are convicted of only one
penetration and have OV 12 84-85.
M. OV 12—Contemporaneous Felonious Criminal Acts

apply. MCL 777.22(1)-(5). Score OV 12 by determining which statements
apply to the circumstances of the sentencing offense and assigning the point
value indicated by the applicable statement having the highest number of
points. MCL 777.42(1).
Points OV 12—Number of contemporaneous felonious criminal acts

25 Three or more contemporaneous felonious criminal acts involving crimes
against a person were committed. MCL 777.42(1)(a).
10 Two contemporaneous felonious criminal acts involving crimes against a
person were committed. MCL 777.42(1)(b).
10 Three or more contemporaneous felonious criminal acts involving other crimes
were committed. MCL 777.42(1)(c).
5 One contemporaneous felonious criminal act involving a crime against a person
was committed. MCL 777.42(1)(d).

5 Two contemporaneous felonious criminal acts involving other crimes were

committed. MCL 777.42(1)(e).
1 One contemporaneous felonious criminal act involving any other crime was
committed. MCL 777.42(1)(f).
0 No contemporaneous felonious criminal acts were committed.
MCL 777.42(1)(g).
• A felonious criminal act is contemporaneous if both of the

following circumstances exist:
–the criminal act occurred within 24 hours of the sentencing

offense, MCL 777.42(2)(a)(i), and
–the criminal act has not and will not result in a separate
conviction, MCL 777.42(2)(a)(ii).
• Conduct scored in OV 11 must not be scored under this variable.

MCL 777.42(2)(c).
• Violations of MCL 750.227b (possession of a firearm during the

commission of a felony) should not be counted when scoring this
variable. MCL 777.42(2)(b).
OV 12 must be scored using all conduct that qualifies as contemporaneous

felonious criminal activity before the court can proceed to score OV 13.
People v Bemer, ___ Mich App ___, ___ (2009). Conduct that is properly
scored under OV 12 may not be omitted from OV 12 simply because
scoring the conduct under OV 13 would yield a higher OV total. Bemer,
supra at ___.
Even when the crimes a defendant conspired to commit are characterized

as crimes against a person, conspiracy is a crime against public safety.
MCL 777.18; MCL 750.157a(a). Therefore, charges or convictions for
conspiracy to commit a crime against a person may not be counted as
crimes against a person when scoring OV 12. People v Miller,
unpublished opinion per curiam of the Court of Appeals, October 28, 2003
(Docket No. 240613). In Miller, the defendant was convicted by plea of
armed robbery and felony-firearm. The defendant had also been charged
with carjacking, conspiracy to commit carjacking, and conspiracy to
commit armed robbery—three offenses that are appropriately counted for
purposes of scoring OV 12. Id. However, the trial court erred in counting
the three offenses as contemporaneous felonious acts involving crimes
against a person for which 25 points would have been appropriate. MCL
777.42(1)(a); Miller, supra. Of the three offenses scored under OV 12,
only carjacking qualified as a crime against a person. MCL 777.16y; MCL
750.529a; Miller, supra. Conspiracy to commit carjacking and conspiracy
to commit armed robbery are crimes against public safety. MCL 777.18;
MCL 750.157a(a); Miller, supra. Instead of 25 points, the defendant

Section 8.6
should have received an OV 12 score of ten points for three or more

contemporaneous felonious criminal acts involving other crimes. MCL
777.42(1)(c); Miller, supra.
When determining the proper score for OV 12, a trial court may consider
a contemporaneous felonious criminal act with which the defendant was
charged at trial, even though the jury acquitted the defendant of that
charge. People v Cornett, unpublished opinion per curiam of the Court of
Appeals, decided April 3, 2003 (Docket No. 233958). See also People v
Minner, unpublished opinion per curiam of the Court of Appeals, decided
June 28, 2002 (Docket No. 227956) (where the defendant was convicted
of one count of first-degree CSC and acquitted of five other felony
charges, sufficient evidence may support use of those five charges in
scoring the defendant’s OVs).

omitted).
N. OV 13—Continuing Pattern of Criminal Behavior
OV 13 is scored for all felony offenses subject to the statutory sentencing

guidelines. MCL 777.22(1)-(5). Determine which statements addressed by
OV 13 apply to the circumstances of the offense and assign the point value
indicated by the applicable statement having the highest number of points.
MCL 777.43(1).

Effective March 1, 2003, 2002 PA 666 amended the instructions for OV 13 to

include references to specific controlled substance offenses. Language
appearing in bold type in the chart below applies to offenses committed on or
after March 1, 2003, pursuant to 2002 PA 666.
Points OV 13—Continuing pattern of criminal behavior

50 The offense was part of a pattern of felonious criminal activity involving 3 or
more sexual penetrations against a person or persons less than 13 years of age.
MCL 777.43(1)(a).
more crimes against a person. MCL 777.43(1)(b).
10 The offense was part of a pattern of felonious criminal activity involving a
combination of 3 or more crimes against a person or property or a violation of
MCL 333.7401(2)(a)(i) to (iii) or 333.7403(2)(a)(i) to (iii). MCL 777.43(1)(c).
10 The offense was part of a pattern of felonious criminal activity directly related
to membership in an organized criminal group. MCL 777.43(1)(d).
10 The offense was part of a pattern of felonious criminal activity involving a
combination of 3 or more violations of MCL 333.7401(2)(a)(i) to (iii) or
333.7403(2)(a)(i) to (iii). MCL 777.43(1)(e).
more crimes against property. MCL 777.43(1)(f).
0 No pattern of felonious criminal activity existed. MCL 777.43(1)(g).
• To score this variable, all crimes within a period of five years,

including the sentencing offense, must be counted without regard
to whether the offense resulted in a conviction. MCL 777.43(2)(a).
• The existence of an organized criminal group may be inferred

from the facts surrounding the sentencing offense, and the group’s
existence is more important than the presence or absence of
multiple offenders, the age of the offenders, or the degree of
sophistication demonstrated by the criminal group. MCL
777.43(2)(b).
• Do not consider conduct scored in OVs 11 or 12 unless the offense

was related to membership in an organized criminal group. MCL
777.43(2)(c).
• Score 50 points only if the sentencing offense is first-degree

criminal sexual conduct. MCL 777.43(2)(d).
• Only one controlled substance offense arising from the criminal *Effective
episode for which the offender is being sentenced may be counted March 1, 2003.
2002 PA 666.
when scoring this variable.* MCL 777.43(2)(e).
• Only one crime involving the same controlled substance may be *Effective
counted under this variable.* For example, conspiracy and a March 1, 2003.
2002 PA 66.
substantive offense involving the same amount of controlled

Section 8.6
substances cannot both be counted under OV 13. Similarly,

possession and delivery of the same amount of controlled
substances may not be counted as two crimes under OV 13. MCL
777.43(2)(f).
All conduct that can be scored under OV 12 must be scored under that
variable before the court can proceed to score OV 13. People v Bemer,
___ Mich App ___, ___ (2009). That is, when scoring OV 13, “the trial
court cannot consider any conduct that was or should have been scored
under [OV 12].” Bemer, supra at ___.
In People v Francisco, 474 Mich 82, 85-88 (2006), the Michigan Supreme
Court ruled that the five-year period to which OV 13 refers must include
the sentencing offense. OV 13 assesses points when a sentencing offense
is part of a pattern of felonious activity. MCL 777.43(1)(b). According to
MCL 777.43(2)(a), a pattern consists of three or more crimes committed
in a five-year period “including the sentencing offense.” In Francisco,
supra at 88, the trial court scored OV 13 at 25 points for the defendant’s
three previous felonies that occurred in 1986, even though the offense for
which the defendant was being sentenced occurred in 2003.
Based on the plain language of MCL 777.43, the Francisco Court

explained:
“[I]n order for the sentencing offense to constitute a part of

the pattern, it must be encompassed by the same five-year
period as the other crimes constituting the pattern.
***
“Because MCL 777.43(2)(a) states that the sentencing

offense ‘shall’ be included in the five-year period, the
sentencing offense must be included in the five-year
period. Therefore, MCL 777.43(2)(a) does preclude
consideration of a five-year period that does not include
the sentencing offense.” Francisco, supra at 87-88.
*Unpublished An offense for which a defendant is acquitted may still be considered for
opinions are not purposes of scoring OV 13 if it is established by a preponderance of the
precedentially evidence that the defendant committed the offense. People v Jenkins,
binding under
the rule of stare
unpublished opinion per curiam of the Court of Appeals, issued August 5,
decisis. MCR 2008 (Docket No. 276763).* Similarly, when a charge against a defendant
7.215(C)(1). is dismissed for reasons not indicated in the record, it may still be
considered for purposes of scoring OV 13 if it is established by a
preponderance of the evidence that the defendant actually committed the
dismissed offense. Id. “A dismissed charge [alone] can hardly be said to
constitute actual evidence of the commission of a crime by a
preponderance of the evidence.” Id., citing People v Drohan, 475 Mich
140 (2006).

OV 13 was properly scored at 25 points where the defendant was

convicted of two felony offenses against a person and had two first-degree
CSC charges pending at the time he was sentenced. People v Wilkens, 267
Mich App 728, 743-744 (2005).
OV 13 was properly scored at 25 points where the evidence established

that the defendant was involved in three home invasions from which the
sentencing offense stemmed, even though the defendant was not
convicted of home invasion. People v Clark, unpublished opinion per
curiam of the Court of Appeals, decided October 2, 2003 (Docket No.
240139). For purposes of OV 13, an offender’s “continuing pattern of
criminal behavior” includes the offender’s involvement in the home
invasions from which the offender acquired the stolen property on which
the sentencing offense was based. Id. The instructions for OV 13
unambiguously mandate the inclusion of all crimes within a five-year
period, regardless of whether convictions resulted. MCL 777.43(2)(a);
Clark, supra.
OV 13’s reference to an offender’s “continuing pattern of criminal

behavior” does not contemplate situations in which an offender’s multiple
concurrent convictions arise from a single incident, as opposed to a series
of incidents that comprise a larger criminal transaction. People v Smith,
February 25, 2003 (Docket No. 229137). In Smith, the defendant’s
convictions arose from the consequences of his operation of a motor
vehicle while under the influence of alcohol. The Court discussed the
decision reached in People v Harmon, 248 Mich App 522, 532 (2001),
where an offender’s OV 13 score was properly set at 25 points for four
concurrent convictions arising from the defendant’s conduct on a single
day. But the Smith Court distinguished the circumstances present before it
from the circumstances in Harmon. According to the Smith Court,
although the defendant’s convictions in Harmon arose from conduct that
occurred on a single day, the defendant’s conduct was easily divisible into
four distinct actions—two photographs each of two different minor
females—which established a “continuing pattern of criminal behavior”
under OV 13. Smith, supra; Harmon, supra at 532. The defendant in Smith
was convicted of multiple concurrent offenses, but each offense largely
overlapped the others and was not readily identifiable as a discrete part of
the whole pattern. Thus, points were not appropriate under OV 13. Smith,
supra. The Court stated:
“The use of the term ‘pattern’ and the fact that the
Legislature permitted consideration of all crimes within a
five-year period evinces an intention that it is repeated
felonious conduct that should be considered in scoring this
offense variable.” Smith, supra.
See also People v Draper, unpublished opinion per curiam of the Court of
Appeals, decided March 23, 2004 (Docket No. 243021) (no pattern was
established where the defendant was convicted of multiple offenses, all of
which occurred within a short time period, but the defendant had no prior
record).

Section 8.6
Ten points were proper under OV 13 where evidence established that the
defendant and at least two other individuals collaborated to manufacture
methamphetamine at several different locations on at least ten occasions.
People v Streeter, unpublished opinion per curiam of the Court of
Appeals, decided September 16, 2004 (Docket No. 246479).
OV 9 under the judicial sentencing guidelines addressed conduct similar

to that addressed by OV 13 under the statutory guidelines. Under the
judicial guidelines, a trial court could not assess points against a defendant
for the defendant’s implied participation in a larger criminal organization
involved in drug dealing. People v Reddish, 181 Mich App 625, 629
(1989). In Reddish, the trial court scored the defendant for his part in
organized crime on the basis that “[the] defendant must have obtained his
drugs from a supplier.” Id. The Court of Appeals ruled that the trial court
erred in its point allocation where there was no evidence to support the
court’s determination that the defendant acted in concert with other
offenders to commit the crimes for which he was convicted. Id.
O. OV 14—Offender’s Role
OV 14 is scored for all felony offenses to which the guidelines apply. MCL
777.22(1)–(5). Determine which statement applies to the sentencing offense
and assign the point value indicated by the applicable statement. MCL
777.44(1).
Points OV 14—Offender’s role

10 The offender was a leader in a multiple offender situation. MCL 777.44(1)(a).
0 The offender was not a leader in a multiple offender situation.
MCL 777.44(1)(b).
• Consider the entire criminal transaction in which the sentencing

offense occurred when determining the offender’s role. MCL
777.44(2)(a).
• In cases involving three or more offenders, more than one offender

may be considered a leader. MCL 777.44(2)(b).
Ten points were appropriate under OV 14 where, although the defendant

did not drive the automobile in which the offenders rode, the defendant
was the oldest among the group of offenders involved in the sexual
assault, he was the first to make sexual contact with the victim and had the
most sexual contact with her, and his was the only DNA that matched the
semen in the victim’s vaginal area. People v Apgar, 264 Mich App 321,
330-331 (2004).

OV 14 was improperly scored where evidence showed that the defendant

was the sole offender involved in the sentencing offense; that the
defendant’s wife and children lived at the same residence and frequent
visits were made by numerous other people is not evidence that a
defendant was the leader in a multiple offender situation. People v Black,
unpublished opinion per curiam of the Court of Appeals, decided October
19, 2004 (Docket No. 248613).
An undercover police informant acting as a buyer in purchasing cocaine

from the defendant is not an “offender” for purposes of OV 14. People v
Rosenberg, unpublished opinion per curiam of the Court of Appeals,
decided January 25, 2005 (Docket No. 251930). A police informant acting
in concert with law enforcement is not “committing a crime” when the
informant’s conduct is authorized by the police. Where the defendant was
the only other person involved in the controlled buy, the circumstances do
not constitute a “multiple offender situation” as intended by OV 14. Id.
OV 14 is properly scored at ten points when the defendant is one of two

offenders (in a group of three offenders) taking an active role in the
commission of the crime and neither one of the two primary participants
establishes himself as the leader. People v Brewer, unpublished opinion
per curiam of the Court of Appeals, decided February 19, 2004 (Docket
No. 242764). In Brewer, ten points were appropriate where the defendant
was one of two men with guns who demanded money from the hotel clerk
and tied him up in the hotel manager’s office, and where testimony
indicated that the third participant’s purpose in the criminal endeavor was
unclear to the victim who suggested that the third person was “maybe a
watch out.” Id.
The defendant was the leader for purposes of OV 14 in a group’s attempt

to rob the victim where the defendant “took initiative” in the robbery
attempt and “was the first person to throw a punch.” People v Scott,
unpublished opinion per curiam of the Court of Appeals, decided March
4, 2004 (Docket No. 243418).
P. OV 15—Aggravated Controlled Substance Offenses
OV 15 is only scored for felony offenses involving a controlled substance.

MCL 777.22(3). Score OV 15 by determining which statements apply to the
sentencing offense and assigning the point value indicated by the applicable
statement having the highest number of points. MCL 777.45(1).
Effective March 1, 2003, 2002 PA 666 amended the statute governing point
allocations for OV 15. Language appearing in the shaded areas of the chart
below represents the variable as it applies to offenses that occurred before

Section 8.6
March 1, 2003. Unshaded areas contain the instructions for scoring OV 15 for
offenses occurring on or after March 1, 2003, the amendment’s effective date.
Pts OV 15—Aggravated controlled substance offenses

100 The offense involved the manufacture, creation, delivery, possession, or possession
with intent to manufacture, create, or deliver of 1,000 or more grams of any mixture
containing a controlled substance classified in schedule 1 or 2 that is a narcotic drug or
a drug described in MCL 333.7214(a)(iv). MCL 777.45(1)(a).
with intent to manufacture, create, or deliver of 450 grams or more but less than 1,000
grams of any mixture containing a controlled substance classified in schedule 1 or 2
that is a narcotic drug or a drug described in MCL 333.7214(a)(iv). MCL 777.45(1)(b).
with intent to manufacture, create, or deliver of 50 or more grams but less than 450
grams of any mixture containing a controlled substance classified in schedule 1 or 2
that is a narcotic drug or a drug described in MCL 333.7214(a)(iv). MCL 777.45(1)(c).
25 The offense involved the sale or delivery of a controlled substance other than
marijuana or a mixture containing a controlled substance other than marijuana by the
offender who was 18 years of age or older to a minor who was 3 or more years
younger than the offender. MCL 777.45(1)(d).
25 The offense involved the sale or delivery of a controlled substance other than
marijuana or a mixture containing a controlled substance other than marijuana by the
offender who was 18 years of age or older to a minor who was 3 or more years
younger than the offender.
20 The offense involved the sale, delivery, or possession with intent to sell or deliver 225
grams or more of a controlled substance classified in schedule 1 or 2 or a mixture
containing a controlled substance classified in schedule 1 or 2.
or more grams but less than 225 grams of a controlled substance classified in schedule
1 or 2 or a mixture containing a controlled substance classified in schedule 1 or 2.
kilograms or more of marijuana or 200 or more of marijuana plants.
MCL 777.45(1)(e).
kilograms or more of marijuana or 200 or more of marijuana plants.
10 The offense is a violation of MCL 333.7401(2)(a)(i) to (iii) pertaining to a controlled
substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in
MCL 333.7414(a)(iv) and was committed in a minor’s abode, settled home, or
domicile, regardless of whether the minor was present. MCL 777.45(1)(f).
5 The offense involved the delivery or possession with the intent to deliver marijuana or
any other controlled substance or a counterfeit controlled substance or possession of
controlled substances or counterfeit controlled substances having a value or under
such circumstances as to indicate trafficking. MCL 777.45(1)(g).
5 The offense involved the delivery or possession with the intent to deliver marijuana or
any other controlled substance or counterfeit controlled substance or possession of
controlled substances or counterfeit controlled substances having a value or under
such circumstances as to indicate trafficking.
0 The offense was not an offense described in the categories above. MCL 777.45(1)(h).
0 The offense was not an offense described in the categories above.

• “Deliver” is the actual or constructive transfer of a controlled

substance from one person to another person without regard to
remuneration. MCL 777.45(2)(a).
• A “minor” is an individual 17 years of age or less. MCL

777.45(2)(b).
• “Trafficking” is the sale or delivery of actual or counterfeit

controlled substances on a continuing basis to another person or
persons for further distribution. MCL 777.45(2)(c).
Dicta appearing in a case remanded for articulation of a substantial and

compelling reason for departure indicates that, for purposes of scoring the
guidelines, a person may “deliver” a controlled substance by injecting the
substance into another person. People v Havens, 268 Mich App 15, 18 (2005).
According to the Court:
“We assume that if injection constitutes delivery for purposes of *The Havens
conviction,* the same act constitutes delivery for purposes of Court cited
People v
scoring offense variable 15 (aggravated controlled substance Schultz, 246
offenses), MCL 777.45, at 25 points for delivery of a controlled Mich App 695,
substance other than marijuana to a minor.” Havens, supra at 18. 701-709 (2001),
as support for
the conclusion
Five points were proper where the defendant was convicted of possession that a person
with intent to deliver less than 50 grams of cocaine. People v Scott, can deliver a
unpublished opinion per curiam of the Court of Appeals, decided October controlled
26, 2004 (Docket No. 248764). The trial court scored OV 15 at five points substance for
because the amount of cocaine and its packaging (pieces of crack cocaine purposes of
were individually wrapped) indicated that the defendant intended to sell conviction by
injecting it into
or deliver a controlled substance having value or under circumstances that another person.
indicated he was involved in trafficking. Id.; MCL 777.45(1)(g).
Q. OV 16—Property Obtained, Damaged, Lost, or Destroyed
OV 16 is scored for all felony offenses under the sentencing guidelines except
those involving a controlled substance. MCL 777.22(2), (4), and (5). When
the offense is a crime against a person, OV 16 is scored only for a violation or
attempted violation of MCL 750.110a (home invasion). MCL 777.22(1).
Score OV 16 by determining which statements addressed by the variable
apply to the sentencing offense and assigning the point value indicated by the
Points OV 16—Degree of property damage

10 Wanton or malicious damage occurred beyond that necessary to commit the
crime for which the offender is not charged and will not be charged.
MCL 777.46(1)(a).

Section 8.6
10 The property had a value of more than $20,000.00 or had significant historical,
social, or sentimental value. MCL 777.46(1)(b).
5 The property had a value of $1,000.00 or more but not more than $20,000.00.
MCL 777.46(1)(c).
1 The property had a value of $200.00 or more but not more than $1,000.00.
MCL 777.46(1)(d).
0 No property was obtained, damaged, lost, or destroyed or the property had a
value of less than $200.00. MCL 777.46(1)(e).
• In cases involving multiple offenders or multiple victims, the

appropriate point total may be determined by aggregating the
value of property involved in the offense, including property
involved in uncharged offenses or property involved in charges
dismissed under a plea agreement. MCL 777.46(2)(a).
• Use the value of the property to score this variable in cases where
the property was unlawfully obtained, lost to the lawful owner, or
destroyed. If the property was damaged, use the amount of money
necessary to restore the property to its pre-offense condition. MCL
777.46(2)(b).
• Money or property involved in admitted but uncharged offenses or

in charges dismissed under a plea agreement may be considered in
scoring this variable. MCL 777.46(2)(c).
Where the sentencing offense was armed robbery, MCL 750.529, OV 16

should not have been scored because armed robbery is a crime against a
person, and for crimes against a person, OV 16 is scored only when the
violation or attempted violation involves MCL 750.110a (home invasion).
MCL 777.22(1); People v Miller, unpublished opinion per curiam of the
Court of Appeals, decided October 28, 2003 (Docket No. 240613).
A family’s attachment to the family pet is the sort of intangible value of

property contemplated by OV 16’s point assignment for damage or
destruction to property with “significant sentimental value” to its victims.
People v Kruithoff, unpublished opinion per curiam of the Court of
Appeals, decided December 16, 2003 (Docket No. 242739).
The monetary amounts reflected in the statutory language governing OV

16 do not require submission of exacting or itemized proof of the
property’s value. See People v Rosario, unpublished opinion per curiam
of the Court of Appeals, decided May 20, 2003 (Docket No. 236965)
(where testimony established that a door had been broken off its hinges, a
mattress was ruined, and a phone line had been pulled off the wall, the
Court of Appeals found that there was sufficient evidence showing that
the property damage met the minimum amount of $200 for purposes of
scoring OV 16).

R. OV 17—Degree of Negligence Exhibited
OV 17 is scored only under very specific circumstances: when the offense is

a crime against a person and the crime involves the operation of a vehicle,
vessel, ORV, snowmobile, aircraft, or locomotive. MCL 777.22(1).
Determine which statements apply to the offense and assign the point value
indicated by the statement having the highest number of points. MCL
777.47(1).
Points OV 17—Degree of negligence exhibited

10 The offender showed a wanton or reckless disregard for the life or property of
another person. MCL 777.47(1)(a).
5 The offender failed to show the degree of care that a person of ordinary
prudence in a similar situation would have shown. MCL 777.47(1)(b).
0 The offender was not negligent. MCL 777.47(1)(c).
• If points are assessed against the offender for OV 6, ten points may
not be scored under this variable. MCL 777.47(2).
• Definitions for “aircraft,” “ORV,” “snowmobile,” “vehicle,” and

“vessel” are referenced in MCL 777.1.
Unlike OV 6 (intent to kill or injure another individual), OV 17 is not

required to be consistent with a jury’s verdict, but where an offender is
assessed points under OV 6 and those points are consistent with the jury’s
verdict, ten points may not be assessed against the offender under OV 17.
MCL 777.36(2)(a); MCL 777.47(2); People v Stanko, unpublished
opinion per curiam of the Court of Appeals, decided January 27, 2004
(Docket No. 242876). Note: The language used in the instructions for OV
17 does not appear to preclude assigning an offender five points under this
variable when the offender received points under OV 6.
S. OV 18—Operator Ability Affected by Alcohol or Drugs
Like OV 17, OV 18 is only scored under very specific circumstances: when

the offense is a crime against a person and the crime involves the operation of
a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive. MCL 777.22(1).
Score OV 18 by determining which of the statements addressed by this
variable apply to the offense and assigning the point value indicated by the
Effective September 30, 2003, 2003 PA 134 amended the statute governing
point allocations for OV 18. Language appearing in the shaded areas of the
chart below represents the variable as it applies to offenses that occurred
before September 30, 2003. Unshaded areas contain the instructions for

Section 8.6
scoring OV 18 for offenses occurring on or after September 30, 2003, the

amendment’s effective date.
Pts OV 18—Degree to which alcohol or drugs affected the offender

20 The offender operated a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive
when his or her bodily alcohol content was 0.20 grams or more per 100 milliliters of
blood, per 210 liters of breath, or per 67 milliliters of urine. MCL 777.48(1)(a).
when his or her bodily alcohol content was 0.20 grams or more per 100 milliliters of
blood, per 210 liters of breath, or per 67 milliliters of urine.
when his or her bodily alcohol content was 0.15 grams or more but less than 0.20
grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of
urine. MCL 777.48(1)(b).
urine.
while the offender was under the influence of alcoholic or intoxicating liquor, a
controlled substance, or a combination of alcoholic or intoxicating liquor and a
controlled substance; or while the offender’s body contained any amount of a
controlled substance listed in schedule 1 under MCL 333.7212, or a rule promulgated
under that section, or a controlled substance described in MCL 333.7214(a)(iv); or
while the offender had an alcohol content of 0.08 grams or more but less than 0.15
grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine
or, beginning October 1, 2013, the offender had an alcohol content of 0.10 grams or
more but less than 0.15 grams per 100 milliliters of blood, per 210 liters of breath, or
per 67 milliliters of urine. MCL 777.48(1)(c).
urine, or while he or she was under the influence of intoxicating liquor or a controlled
substance, or a combination of intoxicating liquor and a controlled substance.
while he or she was visibly impaired by the use of alcoholic or intoxicating liquor or a
controlled substance, or a combination of alcoholic or intoxicating liquor and a
controlled substance, or was less than 21 years of age and had any bodily alcohol
content. MCL 777.48(1)(d).
urine, or while he or she was visibly impaired by the use of intoxicating liquor or a
controlled substance, or a combination of intoxicating liquor and a controlled
substance, or was less than 21 years of age and had any bodily alcohol content.
0 The offender’s ability to operate a vehicle, vessel, ORV, snowmobile, aircraft, or
locomotive was not affected by an alcoholic or intoxicating liquor or a controlled
substance or a combination of alcoholic or intoxicating liquor and a controlled
substance. MCL 777.48(1)(e).
0 The offender’s ability to operate a vehicle was not affected by an intoxicating liquor or
a controlled substance or a combination of intoxicating liquor and a controlled
substance.
 Special Instructions and Definitions
• For purposes of scoring OV 18, “any bodily alcohol content” is

either of the following:

–an alcohol content of 0.02 grams or more but less than 0.08 grams *Beginning
per 100 milliliters of blood, per 210 liters of breath, or per 67 October 1,
2013, an
milliliters of urine,* MCL 777.48(2)(a), or alcohol content
of 0.02 grams or
–any presence of alcohol within a person’s body from the more but less
consumption of alcohol except for alcohol consumption as part than 0.10 grams
of a generally recognized religious service or ceremony, MCL per 100
milliliters of
777.48(2)(b). blood, per 210
liters of breath,
• Definitions for “aircraft,” “ORV,” “snowmobile,” “vehicle,” and or per 67
“vessel” are referenced in MCL 777.1. milliliters of
urine.
T. OV 19—Threat to the Security of a Penal Institution or

Court or Interference with the Administration of Justice or
Emergency Services
OV 19 is scored for all felony offenses to which the statutory sentencing

guidelines apply. MCL 777.22(1)-(5). Determine which statements addressed
by OV 19 apply to the sentencing offense and assign the point value indicated
by the applicable statement having the highest number of points. MCL
777.49(1).
Points OV 19—Threat to security or interference with administration of justice

25 The offender by his or her conduct threatened the security of a penal institution
or court. MCL 777.49(a).
15 The offender used force or the threat of force against another person or the
property of another person to interfere with, attempt to interfere with, or that
results in the interference with the administration of justice or the rendering of
emergency services. MCL 777.49(b).
10 The offender otherwise interfered with or attempted to interfere with the
administration of justice. MCL 777.49(c).
0 The offender did not threaten the security of a penal institution or court or
interfere with or attempt to interfere with the administration of justice or the
rendering of emergency services by force or the threat of force.
MCL 777.49(d).
 Case Law Under the Statutory Guidelines
A defendant’s conduct before criminal charges are filed against him or her
may form the basis of interfering or attempting to interfere with the
administration of justice as contemplated by OV 19; the conduct
constituting interference with the administration of justice under OV 19
includes giving a police officer a false name when asked for identification.
People v Barbee, 470 Mich 283, 284, 288 (2004) (the defendant gave a
false name to a police officer who had pulled over the defendant’s car for
crossing the fog line). The Barbee decision vacated the Court of Appeals
decision in People v Deline, 254 Mich App 595, 597 (2002), lv gtd and
held in abeyance 469 Mich 969 (2003), to the extent that it was
inconsistent with the Supreme Court’s decision in Barbee; that is, to the
extent that the Deline Court equated the conduct required to merit scoring

Section 8.6
under OV 19 with conduct that constituted the “obstruction of justice.”

Barbee, supra at 287. According to the Barbee Court, the phrase
‘administration of justice’ “encompasses more than just the actual judicial
process.” Barbee, supra at 287-288. The Court explained:
“While ‘interfered with or attempted to interfere with the

administration of justice’ is a broad phrase that can include
acts that constitute ‘obstruction of justice,’ it is not limited
to only those acts that constitute ‘obstruction of justice.’
***
“The investigation of crime is critical to the administration

of justice. Providing a false name to the police constitutes
interference with the administration of justice, and OV 19
may be scored, when applicable, for this conduct.” Id. at
286, 288 (footnote omitted).
Under Barbee, the defendant’s conduct in Deline is the type of conduct

properly scored under OV 19. In Deline, the defendant attempted to evade
criminal charges by switching seats with his passenger and refusing
consent to a test of his blood-alcohol content. Deline, supra at 597. See
also People v Cook, 254 Mich App 635 (2003) (ten points were proper
under OV 19 where police pursued the defendant by car and the defendant
attempted to avoid police contact).
Ordinarily, “a general denial of accusation by a defendant cannot support

the scoring of OV 19[.]” People v Jackson, unpublished opinion per
curiam of the Court of Appeals, issued October 1, 2009 (Docket No.
285285). However, OV 19 is properly scored at 10 points where the
defendant “actively lie[s] to the police, providing a false version of events
designed to avoid arrest and to impugn the conduct and reputation of the
victim.” Jackson, supra. In Jackson, supra, the Court found that the
defendant’s “active lies, attempting to portray the victim as the aggressor
and designed to thwart prosecution, interfered with the administration of
justice.”
A defendant’s conduct is properly scored under OV 19 where the

defendant threatens to kill a victim of the crime committed. People v
Endres, 269 Mich App 414, 420-422 (2006). Without regard to a
defendant’s intention when the threat was issued, fifteen points are
appropriate because the “threats resulted in the interference with the
administration of justice, either by preventing the victim from coming
forward sooner or affecting his testimony against defendant.” Id. at 422.
See also People v Steele, 283 Mich App 472, 492-493 (2009) (ten points
were properly scored for OV 19 where the “[d]efendant’s admonitions to
his victims [that he would go to jail if they disclosed his acts of sexual
assault] were a clear and obvious attempt by him to diminish his victims’
willingness and ability to obtain justice”).
OV 19 is properly scored at 15 points where the defendant, in the course

of robbing a retail store, “vigorously resisted and threatened” the store’s
loss prevention officer and other store employees. People v Passage, 277
Mich App 175, 181 (2007). According to the Court, interference with
store employees in their efforts to prevent the defendant from leaving the
premises with unpaid merchandise constituted “interference with the
administration of justice” because MCL 764.16(d) authorizes a private
citizen to make an arrest if the citizen is an employee of a merchant, and
has reasonable cause to believe that the person arrested committed a
larceny in that store. Passage, supra at 180-181. Additionally, the
language in MCL 777.49(b) refers only to using force or threatening force
against another “person.” The statute does not require that the use or threat
of force be directed against police officers. Passage, supra at 181, citing
People v Endres, 269 Mich App 414, 420-422 (2006).
Absent any statutory language indicating otherwise, OV 19 applies to

convictions, such as perjury, that necessarily involve interference with the
administration of justice. People v Underwood, 278 Mich App 334, 339-
340 (2008). The Legislature did not expressly prohibit scoring OV 19 for
the crime of perjury, and because perjury is a public trust offense for
which OV 19 must be scored, the trial court erred in refusing to do so. Id.
Twenty-five points were proper for threatening court security where the
defendant—who was accused of an assaultive crime—ran from the
courtroom and escaped custody. People v Peoples, unpublished opinion
per curiam of the Court of Appeals, decided August 17, 2004 (Docket No.
248155).
Ten points are appropriate when a defendant hides evidence from police
officers after the evidence was discovered on the defendant’s person in a
search incident to arrest. People v Scott, unpublished opinion per curiam
of the Court of Appeals, decided October 26, 2004 (Docket No. 248764).
OV 19 is properly scored at ten points where an offender “goes beyond

merely lying to the police about being guilty, but affirmatively interfer[es]
with the administration of justice by inventing a crime where none existed,
and falsely reporting that non-existent crime to the police.” People v
Morgan, unpublished opinion per curiam of the Court of Appeals, decided
October 21, 2003 (Docket No. 242731). In Morgan, the defendant
assaulted and seriously injured his wife. While driving her to the hospital,
the defendant told her to claim she had been jumped, beaten, and robbed,
and at the hospital, the defendant himself reported the “story” to the
investigating police officer. Id.
OV 19 was properly scored where the defendant absconded and fled the
jurisdiction during his trial. People v Vallance, unpublished opinion per
curiam of the Court of Appeals, decided October 16, 2003 (Docket No.
242163). According to the Vallance Court, the defendant’s conduct was
“precisely the type of ‘evasive and noncooperative behavior’ that OV 19
was designed to address.” Id., quoting Deline, supra at 697-698.
Absent any evidence that the defendant deliberately attempted to prevent

his identification by witnesses, a defendant’s drastic weight loss and
change in head and facial hair styles is not conduct contemplated by OV

Section 8.6
19. People v Arney, unpublished opinion per curiam of the Court of

Appeals, decided March 20, 2003 (Docket No. 236875).
U. OV 20—Terrorism

apply. MCL 777.22(1)-(5). Score OV 20 by determining which statements
addressed by the variable apply to the sentencing offense and assigning the
point value indicated by the applicable statement having the highest number
of points. MCL 777.49a(1).
Points OV 20—Terrorism
100 The offender committed an act of terrorism by using or threatening to use a
harmful biological substance, harmful biological device, harmful chemical
substance, harmful chemical device, harmful radioactive material, harmful
radioactive device, incendiary device, or explosive device. MCL 777.49a(1)(a).
50 The offender committed an act of terrorism without using or threatening to use
a harmful biological substance, harmful biological device, harmful chemical
substance, harmful chemical device, harmful radioactive material, harmful
radioactive device, incendiary device, or explosive device. MCL 777.49a(1)(b).
25 The offender supported an act of terrorism, a terrorist, or a terrorist
organization. MCL 777.49a(1)(c).
0 The offender did not commit an act of terrorism or support an act of terrorism, a
terrorist, or a terrorist organization. MCL 777.49a(1)(d).
• For purposes of scoring this variable, the terms “act of terrorism”

and “terrorist” are defined in MCL 750.543b. MCL 777.49a(2)(a).

“harmful radioactive material,” and “harmful radioactive device”
are defined in MCL 750.200h. MCL 777.49a(2)(b).
• “Incendiary device” includes gasoline or any other flammable

similar device. MCL 777.49a(2)(c).
• For purposes of OV 20, “terrorist organization” is defined in MCL

750.543c. MCL 777.49a(2)(d).
Scoring 100 points for OV 20 is appropriate only when a defendant’s use

or threatened use of one of the substances or devices enumerated in MCL
777.49a also constitutes an act of terrorism as defined by MCL
750.543b(a); a score of 100 is inappropriate when a defendant’s threats to
cause harm using certain substances or devices do not themselves
constitute acts of terrorism. People v Osantowski, 481 Mich 103, 105
(2008). To merit 100 points, the plain language of MCL 777.49a(1)(a)
requires the offender to have “committed an act of terrorism by using or

threatening to use” one of the enumerated substances or devices.
Osantowski, supra at 108-109. In other words, “the use or threatened use
must constitute the means by which the offender committed an act of
terrorism.” Id. at 109. “To constitute an act of terrorism, a threat must be
a violent felony and also must itself be ‘a willful and deliberate act’ that
the offender ‘knows or has reason to know is dangerous to human life’ and
‘that is intended to intimidate or coerce a civilian population or influence
or affect the conduct of government or a unit of government through
intimidation or coercion.’” Id., quoting MCL 750.543b(a). Here, the trial
court properly concluded that the defendant did not actually intend to
intimidate or coerce a civilian population or influence or affect
government conduct when he e-mailed to another teenager his threats to
engage in violent conduct. Osantowski, supra at 112.
Fifty points for “terrorism” were appropriate where the defendant took the *2002 PA 137,
victim’s identification as security for her silence about the robbery, effective April
implying that he knew who she was and where she lived and might exact 22, 2002.
revenge if she reported the crime. People v Johnson, unpublished opinion
per curiam of the Court of Appeals, decided May 25, 2004 (Docket No.
246263) (decided before the adoption of OV 20,* when “terrorism” was
contained in OV 7).
Part III—Recommended Minimum Sentences for

Offenders Not Sentenced as Habitual Offenders
Part III discusses the standard method of determining the recommended
minimum sentence ranges using the statutory sentencing guidelines and grids
for offenders not being sentenced as habitual offenders. The guidelines and
grids as they apply to habitual offenders are discussed in Sections 8.12-8.15,
below.
Part III does not address factors that may influence a court’s discretion in
fashioning the actual sentence imposed on an offender under the guidelines.
The factors a sentencing court may consider when tailoring an offender’s
sentence are discussed in Section 8.30. A court’s departure from the
recommended minimum sentence and the statutory requirements of a valid
departure from the guidelines are discussed in Section 8.48.
8.7 Sentencing Grids
Sentencing grids for all felony offenses to which the guidelines apply are
located in MCL 777.61 to 777.69. There are nine different grids, one each for
crimes in classes A, B, C, D, E, F, G, and H, and one for second-degree
murder. Each sentencing grid is divided into “cells” corresponding to the
number of OV and PRV levels applicable to the crime class represented by the
grid. A defendant’s recommended minimum sentence range is indicated by a
numerical range in the cell located at the intersection of the defendant’s “OV
Section 8.7
level” (vertical axis) and “PRV level” (horizontal axis) on the sentencing grid
appropriate to the offense of which the defendant was convicted. MCL
777.21(1)(c). The recommended minimum sentence in each cell is expressed
by a range of numbers (in months) or life imprisonment (“L”). Id.
The nine grids in MCL 777.61 to 777.69 contain only the sentence ranges for
offenders not being sentenced as habitual offenders; no separate grids for
habitual offenders are provided. However, the recommended minimum
sentence range for habitual offenders is determined by reference to the ranges
reflected in the nine “basic” grids. MCL 777.21(3)(a)–(c). In previously
published sentencing manuals, the sentencing grids for first-time offenders
and for habitual offenders were designed separately so that reference to one
grid was limited to either habitual offender ranges or first-time offender
ranges. The sentencing grids printed in Appendix B, and as shown in the
examples below, are comprehensive sentencing grids that combine the
minimum sentences recommended under the guidelines for all offenders—
both first-time and habitual.
Specific cells in some sentencing grids are differentiated from other cells by
their classification as “prison cells,” “straddle cells,” and “intermediate
sanction cells.” With the exception of cells indicating that an intermediate
sanction is appropriate, the terms “straddle cell” and “prison cell” are not
expressly used in statutes governing application of the sentencing guidelines.
See MCL 769.34(4)(a) and People v Stauffer, 465 Mich 633, 636 n 8 (2002).
A. Prison Cells
*An example of “Prison cells” are those cells for which the minimum sentence recommended
a sentencing exceeds one year of imprisonment. In the sentencing grids that appear in
grid for class F
offenses
existing guidelines manuals and in this monograph, “prison cells” are those
appears below. cells that are unmarked, i.e., not shaded (as are “straddle cells”), and not
asterisked (as are “intermediate sanction cells”).* Use of the term “prison
cell” arises from the statutory mandate that a person convicted of a crime for
which the maximum term of imprisonment is one year or less must be
sentenced to serve the term of imprisonment in the appropriate county jail.
MCL 769.28. This statute prohibits a court from sentencing an offender to a
state penal institution (to the jurisdiction of the department of corrections) for
a term of one year or less.
Note: There is an exception to the one-year rule described above:

when a defendant is convicted of a crime while incarcerated—as
defined by the consecutive sentencing statute—the term imposed
for the second offense may be served in the state prison without
regard to its length. People v Weatherholt, 193 Mich App 115, 119
(1992).

B. Straddle Cells
“Straddle cells”* are those cells in which the lower limit of the recommended *See Section
range is one year or less and the upper limit of the recommended range is more 8.26(B) for a
comprehensive
than 18 months. MCL 769.34(4)(c); Stauffer, supra at 636 n 8. “Straddle discussion.
cells” appear shaded in the sentencing grids published in existing guidelines
manuals and in the grids used in this monograph, as shown in the example
below.
Sentencing Grid for Class F Offenses—MCL 777.67

Includes Ranges Calculated for Habitual Offenders (MCL 777.21(3)(a)–(c))
PRV Level
OV
A B C D E F
Offender
Level 0 Points 1-9 Points 10-24 Points 25-49 Points 50-74 Points 75+ Points Status
3* 6* 9* 17* 23 23
I 3* 7* 11* 21 28 28 HO2
0-9 0 4*
0 9*
0 13*
2 25
5 34
10 34 HO3
Points
6* 12* 18* 34 46 46 HO4
6* 9* 17* 23 23 24
II 7* 11* 21 28 28 30 HO2
10-34 0 9*
0 13*
0 25
5 34
10 34
12 36 HO3
Points
12* 18* 34 46 46 48 HO4
9* 17* 17* 23 24 29
III 11* 21 21 28 30 36 HO2
35-74 0 13*
0 25
2 25
10 34
12 36
14 43 HO3
Points
18* 34 34 46 48 58 HO4
17* 17* 23 24 29 30
IV 21 21 28 30 36 37 HO2
75+ 0 25
2 25
5 34
12 36
14 43
17 45 HO3
Points
34 34 46 48 58 60 HO4
Intermediate sanction cells are marked with asterisks, straddle cells are shaded, and prison cells are unmarked.
C. Intermediate Sanction Cells
“Intermediate sanction cells”* are those cells in which the upper limit *See Section
recommended by the guidelines is 18 months or less. MCL 769.34(4)(a). 8.26(A) for a
comprehensive
These cells are marked with an asterisk in published guidelines manuals and discussion.
in this monograph, as shown in the example above.

Section 8.8
8.8 Felony Offenses Enumerated in MCL 777.11

to MCL 777.17g
*Section 8.6, The felony offenses enumerated in MCL 777.11 to 777.17g require no special
above, details application of the statutory sentencing guidelines. For offenses listed in MCL
the statutory
instructions
777.11 to 777.17g, determine which OVs should be scored by finding the
used to score crime group to which the sentencing offense belongs and scoring only the
each OV. OVs indicated for crimes in that group.* MCL 777.21(1)(a). The total number
of points scored for all OVs appropriate to the offense is the offender’s “OV
level.” Id. Depending on the specific sentencing grid, an offender’s OV level
will be designated in roman numerals from I to VI. The OV level’s numeric
designation increases as the offender’s OV point total increases so that the
severity of the corresponding penalty increases as does the offender’s OV
level.
*Section 8.5, All seven PRVs are scored for felony offenses subject to the statutory
above, sentencing guidelines. MCL 777.21(1)(b).* The total number of points scored
discusses in
detail the
for an offender’s seven PRVs is the offender’s “PRV level.” Id. An offender’s
statutory PRV level is designated by capital letters from A to F according to the
instructions offender’s PRV point total. PRV level A represents the column with the least
pertaining to number of points and PRV level F represents the column with the highest
each PRV.
number of points. As with the OV level values, the severity of penalty
increases with an offender’s transit from PRV level A up to PRV level F. The
point values corresponding with PRV levels A through F are the same for all
nine sentencing grids so that an offender’s criminal history is equally
weighted no matter what the severity of the sentencing offense.
*The “empty A defendant’s recommended minimum sentence is indicated by the range

box” refers to contained in the cell located at the intersection of the defendant’s “OV level”
the top box in
each series of
(vertical axis) and “PRV level” (horizontal axis) on the sentencing grid
boxes down the appropriate to the offense of which the defendant was convicted. MCL
right side of 777.21(1)(c). The appropriate sentence grid is determined by the crime class
each grid—or to which the sentencing offense belongs, and the appropriate minimum
the box in which
HO2, HO3, or sentence range is determined by whether the offender will be sentenced as a
HO4 does not habitual offender. MCL 777.21(1)(c); MCL 777.21(3). For first-time
appear. offenders, or offenders not otherwise being sentenced as habitual offenders,
the appropriate upper limit of a recommended minimum range is the number
corresponding to the empty “offender status” box on the sentencing grid.*
PRV Level
OV A B C D E F Offender
3* 6* 9* 17* 23 23
I 3* 7* 11* 21 28 28 HO2
0-9
0 4*
0 9*
0 13*
2 25
5 34
10 34 HO3
Points
6* 12* 18* 34 46 46 HO4
For example, in the sentencing grid above, the recommended minimum

ranges for an individual being sentenced as a first-time offender are (in

months): for level A-I, 0 to 3; for level B-I, 0 to 6; for level C-I, 0 to 9; for
level D-I, 2 to 17; for level E-I, 5 to 23; and for level F-I, 10 to 23.

(Offenses Predicated on an Underlying Felony)
Special scoring instructions apply to offenses listed in MCL 777.18. Offenses

in MCL 777.18 are offenses predicated on an offender’s commission of an
underlying felony. The offenses listed in MCL 777.18 are those felony
offenses for which the statutory maximum penalty is “variable.” “Variable”
indicates that the term of imprisonment for the violations listed there is not
limited to a specific number of years (as are the individual violations listed in
MCL 777.11 to 777.17g) because the offenses in MCL 777.18 refer to a
variety of underlying felonies to which different statutory maximum penalties
apply. In addition, some provisions of the felony offenses listed in MCL
777.18 provide for mandatory minimums or double or triple times the
maximum terms of imprisonment authorized in the statutory language
governing the underlying felonies themselves.
Scoring instructions for the offenses in MCL 777.18 are found in MCL
777.21(4), which states:
“If the offender is being sentenced for a violation described in

[MCL 777.18], both of the following apply:
“(a) Determine the offense variable level by scoring the

offense variables for the underlying offense and any
additional offense variables for the offense category
indicated in [MCL 777.18].
“(b) Determine the offense class based on the underlying

offense. If there are multiple underlying felony offenses,
the offense class is the same as that of the underlying
felony offense with the highest crime class. If there are
multiple underlying offenses but only 1 is a felony, the
offense class is the same as that of the underlying felony
offense. If no underlying offense is a felony, the offense
class is G.”
Before MCL 777.18 was amended, the offense variables scored for a *Effective
guidelines offense based on an underlying felony were determined by the January 9,
2007. 2006 PA
offense group designated in MCL 777.18 without regard to the underlying 655.
felony’s crime group. As amended, MCL 777.21(4)(a)* requires that all OVs
appropriate to the crime group designated in MCL 777.18 must be scored as
well as any additional OVs appropriate to the crime group of the underlying
offense.

Section 8.9
*Effective The crime class of the underlying offense determines which sentencing grid
January 9, must be used to determine the offender’s recommended minimum sentence
2007. 2006 PA
655.
range once the offender’s PRV and OV levels have been calculated. Before it
was amended, MCL 777.21(4) indicated that the crime class of a guidelines
offense under MCL 777.18 was to be determined by the crime class of the
underlying felony. Occasionally, an MCL 777.18 offense was based on a prior
misdemeanor offense (a violation of MCL 333.7410(4) based on a violation
of MCL 333.7403(2)(d), for example) for which no crime class designation
existed. As amended, MCL 777.21(4)(b)* assigns a “default” crime class of
G to an MCL 777.18 offense when none of the underlying offenses is a felony.
There are eight felony offenses included in MCL 777.18 to which the
statutory sentencing guidelines apply, and a conviction for any of the eight
offenses requires the commission of an offense described in the statutory
language of the eight respective felony offenses. Each of the eight offenses is
discussed below.
A. Controlled Substance Violations Involving Minors or Near

School Property—MCL 333.7410
MCL 333.7410 addresses several felony violations to which the sentencing

guidelines apply.
Delivery of cocaine or a narcotic drug listed in schedule 1 or 2 to a minor.

MCL 333.7410(1) addresses an offender aged 18 or over who violates MCL
333.7401(2)(a)(iv) (less than 50 grams) by delivering or distributing a
controlled substance in schedule 1 or 2 that is a narcotic drug or a drug
described in MCL 333.7214(a)(iv) (cocaine and related substances) to an
individual under the age of 18 who is at least three years younger than the
deliverer or distributor. For a conviction of MCL 333.7410(1), the trial court
may:
• impose the $25,000.00 fine authorized under MCL

333.7401(2)(a)(iv); or
• sentence the offender to a term of imprisonment of not less than

one year and not more than twice the 20-year maximum term
authorized under MCL 333.7401(2)(a)(iv); or
• both.
Delivery of gamma-butyrolactone (GBL) or a controlled substance listed

in schedules 1 to 5 to a minor. MCL 333.7410(1) also provides the penalties
for a person aged 18 or over who violates MCL 333.7401(2)(b), (c), or (d), or
MCL 333.7401b by distributing or delivering any other controlled substance
listed in schedules 1 to 5 or GBL to a person under age 18 who is at least three
years younger than the distributor or deliverer. An offender convicted of
violating this portion of MCL 333.7410(1) is subject to:

• a fine authorized by MCL 333.7401(2)(b), (c), or (d), or MCL *The fine

333.7401b;* or amounts and
maximum terms
of imprisonment
• a term of imprisonment not to exceed twice the term authorized vary according
under MCL 333.7401(2)(b), (c), or (d), or MCL 333.7401b; or to the controlled
substance
• both. involved.
Delivery of cocaine or a narcotic drug listed in schedule 1 or 2 within

1,000 feet of school property. MCL 333.7410(2) provides the penalty for a
person aged 18 years or older who violates MCL 333.7401(2)(a)(iv) (less than
50 grams) by delivering or distributing a controlled substance described in
schedule 1 or 2 that is a narcotic drug or a drug described in MCL
333.7214(a)(iv) (cocaine and related substances) to another person on or
within 1,000 feet of school property. Conviction of violating MCL
333.7410(2) subjects an offender to:
• mandatory imprisonment for not less than two years* and not more *The trial court
than three times the 20-year maximum term authorized by MCL may depart
from the
333.7401(2)(a)(iv); and mandatory
minimum term
• a discretionary fine not to exceed three times the $25,000.00 fine for substantial
permitted under MCL 333.7401(2)(a)(iv). and compelling
reasons. MCL
333.7410(5).
Possession with intent to deliver cocaine or a narcotic drug listed in
schedule 1 or 2 within 1,000 feet of school property. MCL 333.7410(3)
provides the penalty for a person aged 18 years or older who violates MCL
333.7401(2)(a)(iv) (less than 50 grams) by possessing with the intent to
deliver a controlled substance described in schedule 1 or 2 that is a narcotic
drug or a drug described in MCL 333.7214(a)(iv) (cocaine and related
substances) on or within 1,000 feet of school property. An offender convicted
of violating MCL 333.7410(3) is subject to:
• mandatory imprisonment for not less than two years* and not more *The trial court
than two times the maximum term of 20 years authorized under may depart
from the
MCL 333.7401(2)(a)(iv); and mandatory
minimum term
• a discretionary fine not to exceed three times the $25,000.00 fine for substantial
permitted under MCL 333.7401(2)(a)(iv). and compelling
reasons. MCL
333.7410(5).
Possession of GBL or other controlled substance on or within 1,000 feet
of school property. MCL 333.7410(4) provides the penalty for persons aged
18 years of age or older who violate MCL 333.7401b or 333.7403(2)(a)(v),
(b), (c), or (d), by possessing GBL or a controlled substance on or within
1,000 feet of school property. An offender convicted of violating MCL
333.7410(4) is subject to:

Section 8.9
*The terms of • mandatory imprisonment, or the imposition of a fine, or both, not

imprisonment to exceed two times the term of imprisonment or twice the amount
and the
amounts of the
of fine authorized by MCL 333.7401b or 333.7403(2)(a)(v), (b),
fines vary with (c), or (d).*
the controlled
substance
involved in each B. Subsequent Controlled Substance Violations—
of these MCL 333.7413(2) or (3)
statutes.
MCL 333.7413(2) provides the penalties possible for a person convicted of a

second or subsequent offense under article 7 of the Public Health Code, MCL
333.7101 to 333.7545 (controlled substances offenses). MCL 333.7413(2)
applies to “general” controlled substance offenses not otherwise addressed by
the specific sentencing provisions of MCL 333.7413(1) and (3). Offenders
convicted under MCL 333.7413(2) may be sentenced to a term of
imprisonment up to twice the term authorized by the statute governing the
specific offense, or may be fined up to two times the amount permitted for a
violation of the specific offense, or both. MCL 333.7413(2).
“MCL 333.7413(2), by authorizing a trial court to enhance the sentence of a

defendant who is a repeat drug offender to a ‘term not more than twice the
term otherwise authorized,’ allows the trial court to double both the
defendant’s minimum and maximum sentences.” People v Lowe, 484 Mich
718, 719-720 (2009).
*Discussed MCL 333.7413(3) provides the penalty for a person convicted of a second or
above in subsequent violation of MCL 333.7410(2) or (3).* All of the following apply
subsection (A).
to an offender convicted under MCL 333.7413(3):
*The trial court • The offender must be sentenced to a mandatory minimum term of
may depart imprisonment of five years* but may not be sentenced to more
from the
mandatory
than two times the term authorized in MCL 333.7410(2) and (3).
minimum for
substantial and • The offender may be fined up to three times the amount authorized
compelling by MCL 333.7410(2) and (3).
reasons. MCL
333.7413(4). • The offender is not eligible for probation or suspension of his or
her sentence.
“Another state” for purposes of MCL 777.51(2) (one of the statutory

instructions for scoring prior record variable 1 under the sentencing
guidelines) does not include foreign states. People v Price, 477 Mich 1, 5
counted for purposes of PRV 1). The Court’s reasoning for its interpretation
of “another state” as used in MCL 777.51(2) likely applies to the language
used in MCL 333.7413(5) to define second or subsequent offenses. MCL
333.7413(5) states:
“[A]n offense is considered a second or subsequent offense, if,

before conviction of the offense, the offender has at any time been
convicted under this article or under any statute of the United
States or of any state relating to a narcotic drug, marihuana,

depressant, stimulant, or hallucinogenic drug.” (Emphasis added.)

Michigan law is a state of the United States, not a province of Canada and not
a foreign state. Obviously, Michigan is one of the states that comprise the
United States. Thus, the most obvious meaning of ‘another state’ in this
context is one of the states, other than Michigan, that comprise the United
States. A Canadian conviction is not ‘a felony under a law of the United States
or another state[.]’” Price, supra at 4-5.
Note: The concurrent (or exclusive) application of the general habitual

offender statutes and the penalties prescribed by the Public Health Code
for subsequent controlled substance offenses are discussed in Section
8.16, below.
C. Recruiting or Inducing a Minor to Commit a Controlled

Substance Felony—MCL 333.7416(1)(a)
MCL 333.7416(1)(a) provides the penalty for a person aged 17 years or older
who has recruited, induced, solicited, or coerced a minor less than 17 years of
age to commit or attempt to commit a controlled substance offense that would
be a felony if committed by an adult. Offenders convicted of violating MCL
333.7416(1) may be fined up to the amount authorized for an adult convicted
of the underlying offense. In addition to any fine imposed, offenders
convicted under MCL 333.7416(1) must be sentenced as follows:
• to a mandatory minimum term* not less than one-half the *The court may
maximum term of imprisonment authorized for an adult convicted depart from the
minimum term
of the crime; for substantial
and compelling
• to a maximum term of imprisonment that does not exceed the reasons. MCL
maximum term authorized by statute for an adult convicted of the 333.7416(3).
crime;
• an offender sentenced under MCL 333.7416(1) is not eligible for

probation and the sentence received must not be delayed or
suspended. MCL 333.7416(2).
Note: MCL 333.7416(1) does not apply to an act that is a

violation of MCL 333.7401(2)(d) that involves the
manufacture, delivery, possession, etc. of marijuana. MCL
333.7416(4).
D. Conspiracy—MCL 750.157a(a)
MCL 750.157a(a) provides the penalty for a person who conspires with at
least one other person to commit an act prohibited by law when commission
of the prohibited act is punishable by at least one year of imprisonment. An

Section 8.9
offender convicted under MCL 750.157a(a) must be sentenced to a term of

imprisonment equal to the term authorized for conviction of the offense the
offender conspired to commit. In addition to a term of imprisonment, the court
may impose a $10,000.00 fine on an offender convicted of conspiracy.
E. Recruiting or Inducing a Minor to Commit a Felony—

MCL 750.157c
MCL 750.157c provides the penalty for a person aged 17 years or older who
recruits, induces, solicits, or coerces a minor under the age of 17 years to
commit or attempt to commit an act that would be a felony if committed by an
adult. Violators of MCL 750.157c are guilty of a felony and must be sentenced
to a term not to exceed the maximum term authorized by law for conviction
of the act committed or attempted. In addition to the mandatory term of
imprisonment, the court may impose a fine on the offender of not more than
three times the amount authorized by law for conviction of the act committed
or attempted.
F. Voluntarily Allowing a Prisoner to Escape—MCL 750.188
MCL 750.188 provides the penalty for a jailor or other officer who voluntarily
allows a prisoner in his or her custody to escape. Under MCL 750.188, an
officer convicted of this offense must be sentenced to the same punishment
and penalties to which the escaped prisoner was or would have been subject.
G. Felony Offenses Committed in Weapon-Free School

Zones—MCL 750.237a
MCL 750.237a describes conduct prohibited in weapon-free school zones and

provides the penalties for convictions based on that conduct. MCL 750.237a
is a separate felony offense based on an offender’s violation of one of the
thirteen underlying weapons-related statutes when the violation occurs in a
weapon-free school zone. An offender may be charged with and convicted of
an offense under MCL 750.237a when he or she is a first-time offender of the
following statutes:
• MCL 750.224 (manufacture, sale, or possession of machine gun,

silencer, bomb, chemical agents, etc.);
• MCL 750.224a (possession or sale of a device emitting an

electrical current or impulse—a “stun gun”);
• MCL 750.224b (manufacture, sale, or possession of a short-

barreled shotgun or rifle);
• MCL 750.224c (manufacture, distribution, sale, or use of armor-

piercing ammunition);

• MCL 750.224e (manufacture, sale, distribution, or possession of

device to convert semi-automatic weapons to fully-automatic
ones);
• MCL 750.226 (carrying a firearm or other dangerous weapon with

unlawful intent);
• MCL 750.227 (carrying a concealed weapon);
• MCL 750.227a (carrying a licensed firearm outside the scope

authorized by the license);
• MCL 750.227f (commission or attempted commission of a violent

act while wearing body armor);
• MCL 750.234a (intentional discharge of a firearm from a motor

vehicle, snowmobile, or ORV);
• MCL 750.234b (intentional discharge of a firearm toward an

occupied dwelling); or
• MCL 750.234c (intentional discharge of a firearm at an

emergency or law enforcement vehicle).
An offender may be charged with and convicted of an offense under MCL

750.237a for second or subsequent violations of MCL 750.223(2) (knowingly
selling a firearm longer than 30 inches to a person under the age of 18), when
the violations occurred in a weapon-free school zone.
Violators of MCL 750.237a are guilty of a felony and subject to one or more
of the following:
• imprisonment for not more than the maximum term authorized by

the specific statutory section violated, MCL 750.237a(1)(a); or
• not more than 150 hours of community service, MCL

750.237a(1)(b); or
• a fine of not more than three times the fine authorized by the
specific statutory section violated, MCL 750.237a(1)(c).
H. Larceny of Rationed Goods—MCL 750.367a
MCL 750.367a provides the penalties for stealing “any goods, wares, or
merchandise, the manufacture, distribution, sale or use of which is restricted
or rationed by the federal government, or any of its agencies or
instrumentalities, during a state of war between the United States and any
other country or nation . . . .” An offender convicted of an offense under MCL
750.367a may be sentenced to a term of imprisonment not more than two
times the term authorized for conviction of the underlying offense. In
addition, an offender convicted under this statute may be ordered to pay a fine

Section 8.10
of not more than twice the amount permitted for conviction of the underlying
offense. MCL 750.367a.

(Attempts)
*Intermediate Attempted offenses are subject to the statutory guidelines only if the offense
sanctions apply attempted is a felony offense in class A, B, C, D, E, F, or G. MCL 777.19(1).
to attempted
class H felonies
Attempts to commit class H felonies are not scored under the guidelines.*
punishable by MCL 777.19(1).
more than one
year of To determine the OVs appropriate to an attempted felony subject to the
imprisonment.
MCL sentencing guidelines, use the crime group of the offense attempted. MCL
769.34(4)(b). 777.21(5). For example, if an offender is convicted of attempted armed
See Section robbery, OVs designated for scoring are those for the crime group “person”
8.26(A), below,
for more
because armed robbery (the offense attempted) is categorized as a crime
information. against a person. MCL 750.89; MCL 777.16d.
Once the offender’s OV and PRV levels have been totaled for an attempted
offense, the proper sentencing grid on which to find the recommended
minimum sentence range is determined by the attempted offense’s original
crime class designation as follows:
• Attempts to commit offenses in classes A, B, C, or D are classified

as class E offenses. MCL 777.19(3)(a).
• Attempts to commit offenses in classes E, F, or G are classified as

class H offenses. MCL 777.19(3)(b).
Part IV—Habitual Offender Provisions
8.11 Establishing a Defendant’s Habitual Offender Status
Michigan’s sentencing law is designed so that the punishment possible for

conviction of a crime may be increased in proportion to the offender’s number
of previous felony convictions. The “general” habitual offender statutes are
found in MCL 769.10, 769.11, and 769.12 and operate to raise the maximum
sentence allowed for repeat offenders based on both the number of a
defendant’s prior felony convictions and the specific maximum penalty
authorized for conviction of the sentencing offense. MCL 777.21 is the
statutory provision that allows for an incremental increase in the
recommended minimum sentence range under the statutory guidelines based
on the number of the defendant’s previous felony convictions. The trio of
“general” habitual offender statutes and MCL 777.21 are discussed in detail
in Sections 8.12, 8.13, 8.14, and 8.15, below.

A. Notice of Intent to Seek Enhancement
In cases where the prosecuting attorney intends to seek enhancement of a

defendant’s sentence on the basis that the defendant is a habitual offender, the
prosecuting attorney must file written notice with the court of this intent
within 21 days after the defendant’s arraignment on the information. MCR
6.112(F); MCL 769.13(1). If arraignment is waived, the notice of
enhancement must be filed within 21 days after the information is filed. MCL
769.13(1). If a defendant’s trial on the felony charge begins within the 21-day
period, the notice of enhancement must be filed with the court before the
beginning of trial. MCR 6.112(F).
Note: Amendments effective January 1, 2006, remove the

reference to a defendant’s trial from the time limits discussed in
MCR 6.112(F). As amended, MCR 6.112(F) states:
“(F) Notice of Intent to Seek Enhanced Sentence. A notice

of intent to seek an enhanced sentence pursuant to MCL
769.13 must list the prior convictions that may be relied
upon for purposes of sentence enhancement. The notice
must be filed within 21 days after the defendant’s
arraignment on the information charging the underlying
offense or, if arraignment is waived, within 21 days after
the filing of the information charging the underlying
offense.”
If a defendant pleads guilty or nolo contendere at arraignment on the

information to the offense charged or to a lesser offense, the prosecuting
attorney may file the notice of enhancement after the defendant’s conviction
by plea or within the 21-day period after the arraignment. MCL 769.13(3).
The 21-day filing requirement prevents a prosecutor’s amendment of the

notice of enhancement where the prospective amendment would elevate the
offender’s habitual offender status or otherwise increase the offender’s
potential sentencing consequences. People v Hornsby, 251 Mich App 462,
469, 472 (2002). A prosecutor was denied permission to make an untimely
amendment to a timely filed notice of enhancement where the amendment
sought to add two additional prior convictions and to elevate the defendant’s
status from second habitual to fourth habitual. People v Ellis, 224 Mich App
752, 755 (1997).
An untimely amendment to correct a technical defect in the contents of a

timely filed enhancement notice is not subject to the 21-day requirement. The
untimely correction of erroneous information in a timely filed notice did not
impact the fact that the defendant was provided with proper notice of the
prosecutor’s intent to seek sentence enhancement on the basis of the
defendant’s habitual offender status. Hornsby, supra at 470.

Section 8.11
The unambiguous language governing the 21-day period in which the

enhancement notice must be filed “does not include any exception for
undiscovered out-of-state convictions[.]” People v Morales, 240 Mich App
571, 576 (2000); People v Fountain, 407 Mich 96, 99 (1979).
Note: The Supreme Court has required strict adherence to the 21-
day limit. Allowing the prosecution to amend or file a notice after
the 21 days has expired will significantly alter the potential
consequences to the defendant (enhanced sentence due to habitual
offender status). See People v Williams, 462 Mich 882 (2000), and
People v Cobley, 463 Mich 893 (2000). In both cases, the Court
summarily reversed the Court of Appeals, vacated the defendants’
habitual offender sentences, and remanded for resentencing.
B. List of Prior Convictions on Which Prosecutor Will Rely
The prosecuting attorney must identify the prior convictions on which the
offender’s status as a habitual offender is based and on which the prosecutor
intends to rely in seeking sentence enhancement. MCL 769.13(2). The list of
prior convictions on which the prosecutor’s enhancement notice is based must
be filed with the court and served on the defendant or his or her attorney
within the same time period as the notice itself—within 21 days of the
defendant’s arraignment on the information, or if arraignment is waived,
within 21 days after the information is filed. MCL 769.13(2).
C. Establishing the Existence of a Prior Conviction
*See Section A defendant charged as a habitual offender may challenge the validity of any
8.21, below, for of the prior convictions listed in the prosecutor’s notice of enhancement. MCL
a detailed
discussion of
769.13(4). To challenge a prior conviction, the defendant must file a written
the procedure motion with the court and serve the prosecutor with a copy of the motion. Id.
by which a The court must resolve any challenges raised by the defendant to the accuracy
defendant’s or constitutional validity of a prior conviction at sentencing or at a separate
collateral attack
on the hearing held before sentencing.* MCL 769.13(6).
constitutional
validity of prior The court must determine the existence of any of the prior convictions listed
convictions is
resolved.
in the prosecutor’s notice to seek enhancement at sentencing, or at a separate
hearing scheduled before sentencing for that purpose. MCL 769.13(5); People
v Green, 228 Mich App 684, 700 (1998). Any evidence relevant to
establishing the existence of a prior conviction may be used for that purpose,
including one or more of the following items listed in MCL 769.13(5):
“(a) A copy of a judgment of conviction.
“(b) A transcript of a prior trial or a plea-taking or sentencing

proceeding.
“(c) A copy of a court register of actions.

“(d) Information contained in a presentence report.
“(e) A statement of the defendant.”
A trial court properly identified the defendant at sentencing as a second

habitual offender and sentenced him accordingly based on the defendant’s
PSIR, which contained details of the defendant’s prior felony conviction.
MCL 769.13(5)(c); Green, supra at 700.
MCL 769.13(6) describes the process by which the trial court must resolve a
defendant’s properly raised challenge to the use of a prior conviction to
enhance his or her sentence under the general habitual offender statutes:
“The court shall resolve any challenges to the accuracy or

constitutional validity of a prior conviction or convictions that
have been raised in a motion filed under subsection (4) at
sentencing or at a separate hearing scheduled for that purpose
before sentencing. The defendant, or his or her attorney, shall be
given an opportunity to deny, explain, or refute any evidence or
information pertaining to the defendant’s prior conviction or
convictions before sentence is imposed, and shall be permitted to
present relevant evidence for that purpose. The defendant shall
bear the burden of establishing a prima facie showing that an
alleged prior conviction is inaccurate or constitutionally invalid. If
the defendant establishes a prima facie showing that information
or evidence concerning an alleged prior conviction is inaccurate,
the prosecuting attorney shall bear the burden of proving, by a
preponderance of the evidence, that the information or evidence is
accurate. If the defendant establishes a prima facie showing that an
alleged prior conviction is constitutionally invalid, the prosecuting
attorney shall bear the burden of proving, by a preponderance of
the evidence, that the prior conviction is constitutionally valid.”
1. Classification of the Prior Conviction
A “felony” is “a violation of a penal law of this state for which the

offender, upon conviction, may be punished by death or by imprisonment
for more than 1 year or an offense expressly designated by law to be a
felony.” MCL 761.1(g). For purposes of the habitual offender statutory
provisions, a “prior felony conviction” is a conviction for conduct or
attempted conduct that would be a felony if committed in Michigan no
matter where the crime was actually committed. MCL 769.10–769.12.
Therefore, whether obtained in Michigan or in another jurisdiction, a
defendant’s previous convictions for conduct punishable under Michigan
law by imprisonment for more than one year or for conduct expressly
designated by Michigan law as felonious conduct are “prior felony
convictions” for purposes of determining a defendant’s habitual offender
status.
A prior felony conviction obtained in another state that, by offense title

alone, would qualify only as a misdemeanor offense in Michigan, was not
Section 8.11
necessarily invalid for purposes of establishing a defendant’s habitual

offender status. People v Quintanilla, 225 Mich App 477, 478-479 (1997).
According to the Court,
“The act requires that the offense be a felony in Michigan

under Michigan law, irrespective of whether the offense
was or was not a felony in the state or country where
originally perpetrated. Hence, the facts of the out-of-state
crime, rather than the words or title of the out-of-state
statute under which the conviction arose, are
determinative.” Id. at 479.
Prior convictions for offenses that were felonies at the time they were
committed may be used to establish a defendant’s habitual offender status
even when the prior offenses have been reclassified as misdemeanors.
People v Odendahl, 200 Mich App 539, 543-544 (1993), overruled in part
on other grounds 450 Mich 1025 (1996). In support of its conclusion, the
Odendahl Court cited the Michigan Supreme Court’s reasoning in an
earlier case:
“[T]he purpose of the habitual offender statute was

punishment for the recidivist, and [] repealing a criminal
law did not ‘remove from the offender the character of
being a violator of the law.’” Id. at 543, quoting In re Jerry,
294 Mich 689, 692 (1940).
An out-of-state conviction classified as a misdemeanor may constitute a

felony under Michigan law depending on the facts of the case and the
penalty imposed. People v Southward, unpublished opinion per curiam of
the Court of Appeals, decided August 19, 2004 (Docket No. 249293). In
Southward, the defendant’s prior conviction in North Carolina was
classified as a misdemeanor, but the defendant was sentenced to two years
of imprisonment (suspended) and three years of supervised probation.
Under Michigan law, a crime may be labeled a misdemeanor under the
Penal Code and be punishable by more than one year of imprisonment.
For purposes of the general habitual offender statutes, any offense
punishable by more than one year of imprisonment is a felony. Id.
See also Burgess v United States, 553 US ___, ___ (2008) (even if state
law classifies the offense as a misdemeanor, a state drug offense
punishable by more than one year in prison constitutes a felony drug
offense as that term is used in the repeat offender provision of the federal
Controlled Substances Act, 21 USC §841(b)(1)(A)).
2. Double Jeopardy Challenges
Use of a defendant’s prior felony conviction as the basis for the crime of
felon in possession of a firearm and to establish the defendant’s status as
a habitual offender does not violate the constitutional prohibitions against
double jeopardy. People v Phillips, 219 Mich App 159, 162-163 (1996).

In resolving the defendant’s challenge to use of the same prior felony

conviction for both purposes, the Court of Appeals stated:
“Neither the habitual offender statute nor the felon in

possession of a firearm statute prohibits the application of
the statutory habitual offender sentence enhancement
provision for a conviction of felon in possession of a
firearm. Nor do these statutes expressly preclude a prior
felony conviction that is used to establish the crime of
felon in possession of a firearm from also being used as a
prior conviction under the habitual offender statutes.” Id.
at 163.
The habitual offender statutes do expressly prohibit the use of a conviction *See Section
to enhance a sentence “if that conviction is used to enhance a sentence 8.17 for detailed
under a statute that prohibits use of the conviction for further enhancement discussion of
concurrent/
under [the habitual offender statutes].”* MCL 769.10(3), 769.11(3), and exclusive
769.12(3). application of
sentencing
The same prior felonies may be used to establish a defendant’s habitual enhancement
offender status for more than one subsequent felony conviction when the schemes
contained in the
subsequent felonies were committed at different times. People v habitual
Anderson, 210 Mich App 295, 298 (1995). Because the habitual offender offender
sentencing provisions do not create substantive offenses separate from the statutes and
underlying prior convictions, a defendant’s double jeopardy protection is those in other
not implicated. Id. statutory
penalty
provisions.
3. Multiple Convictions From the Same Judicial Proceeding
When counting prior felonies under Michigan’s habitual offender statutes,

each felony conviction that preceded the sentencing offense is a separate
felony conviction, even if more than one conviction arose from the same
criminal transaction. People v Gardner, 482 Mich 41, 44 (2008). In
Gardner, supra at 53-62, the Michigan Supreme Court rejected its
previous method, set out in People v Preuss, 436 Mich 714 (1990), and
People v Stoudemire, 429 Mich 262 (1987) (modified by Preuss, supra at
739), of counting multiple felonies that arose from the same criminal
incident or transaction as a single felony. The Court explained that the
plain language of the habitual offender statutes, MCL 769.10-769.13,
“directs courts to count each separate felony conviction that preceded the
sentencing offense, not the number of criminal incidents resulting in
felony convictions.” Gardner, supra at 44.
4. Convictions Older Than Ten Years
There is no rule prohibiting use of a defendant’s prior convictions from *See Section
more than ten years before the date of the sentencing conviction for 8.5(A).
purposes of establishing the defendant’s habitual offender status. People
v Zinn, 217 Mich App 340, 349 (1996). This is unlike the “10-year gap”
rule that limits the age of previous convictions that may be counted against
a defendant for the purposes of scoring his or her prior record variables.*

Section 8.12
8.12 Determining a Habitual Offender’s Recommended

Minimum Sentence Range Under the Statutory
Sentencing Guidelines
*Numeric The nine sentencing grids in MCL 777.61 to 777.69 represent the proper
values have sentence ranges for offenders not being sentenced as habitual offenders.
been rounded
down to the
Separate grids reflecting the recommended sentence ranges for habitual
nearest whole offenders for the same nine crime classes (A through H, and second-degree
month. The murder, M2) do not exist in the statutory provisions governing felony
actual term in sentencing. However, statutory authority exists for determining the upper
months may
exceed the limit of a habitual offender’s recommended minimum sentence range by
value indicated adding an incremental percentage of the range calculated for first-time
in the cell by a offenders (or offenders who are not otherwise being sentenced as habitual
fraction of a
month.
offenders).* The statutory method of calculating the minimum range
recommended for habitual offenders is found in MCL 777.21, which provides
in part:
*The “general” “(3) If the offender is being sentenced under [MCL 769.10,
habitual 769.11, or 769.12],* determine the offense category, offense class,
offender
statutory
offense variable level, and prior record variable level based on the
provisions. underlying offense. To determine the recommended minimum
sentence range, increase the upper limit of the recommended
minimum sentence range determined under part 6 for the
underlying offense as follows:
“(a) If the offender is being sentenced for a second felony,

25%.
“(b) If the offender is being sentenced for a third felony,

50%.
“(c) If the offender is being sentenced for a fourth or

subsequent felony, 100%.”
*See Section Statutory law defines a “felony” as “a violation of a penal law of this state for
8.11(C), above, which the offender, upon conviction, may be punished by death or by
for further
discussion of
imprisonment for more than 1 year or an offense expressly designated by law
establishing to be a felony.” MCL 761.1(g). For purposes of the habitual offender statutory
prior felony provisions, a “prior felony conviction” is a conviction for conduct or
convictions. attempted conduct that would be a felony if committed in Michigan no matter
where the crime was actually committed. MCL 769.10–769.12. Therefore,
whether obtained in Michigan or in another jurisdiction, a defendant’s
previous convictions for conduct punishable under Michigan law by
imprisonment for more than one year or for conduct expressly designated by
Michigan law as felonious conduct are “prior felony convictions” for
purposes of determining a defendant’s habitual offender status.*

When sentencing a defendant as a habitual offender, “[a] court shall not fix a
maximum sentence that is less than the maximum term for a first conviction.”
MCL 769.10(2), 769.11(2), and 769.12(2).
In previously published sentencing manuals, the sentencing grids for first- *Numeric
time offenders and the grids for habitual offenders were designed separately values have
been rounded
so that reference to one grid was limited to either habitual offender ranges or down to the
first-time offender ranges. The sentencing grids printed in Appendix B, and as nearest whole
shown in the example below, combine the ranges recommended under the month. The
guidelines for all offenders—first-time and habitual.* Locating the actual term in
months may
appropriate cell for a habitual offender in any of the nine sentencing grids is exceed the
addressed in the subsections below. value indicated
in the cell by a
fraction of a
Note: The “general” habitual offender provisions contained in month.
MCL 769.10, 769.11, and 769.12 establish the maximum term of
imprisonment that may be imposed on a defendant being
sentenced as a habitual offender under those statutory provisions.
There is a critical distinction between the “general” habitual
offender provisions of MCL 769.10, 769.11, and 769.12 and the
sentence enhancements authorized by MCL 777.21. MCL 769.10,
769.11, and 769.12 relate to the maximum penalty authorized by
the statute under which the defendant’s conduct was prohibited.
These habitual offender enhancement provisions permit a
sentencing court to impose on a habitual offender a sentence
greater than the maximum sentence permitted by statute for a first
conviction of the sentencing offense. The maximum term of
imprisonment permitted for a habitual offender’s felony
conviction (as authorized under MCL 769.10, 769.11, and 769.12)
must be determined by reference to the specific criminal statute the
defendant’s conduct violated. In contrast to the “general” habitual
offender provisions, the enhancements authorized by MCL 777.21
increase the recommended minimum sentence ranges calculated
under the sentencing guidelines as the ranges apply to habitual
offenders. These increased minimum ranges are reflected in each
of the nine sentencing grids because the ranges vary only as a
result of the defendant’s habitual offender status as applied to his
or her placement in the appropriate sentencing grid.
8.13 Second Habitual Offender Status (HO2)
A person who commits a felony in Michigan and who has been previously
convicted of a felony or attempted felony (whether or not the previous
conviction occurred in Michigan as long as the violation would have been a
felony violation if it had been obtained in Michigan) is a second habitual
offender subject to the following penalties:
 If the subsequent felony is punishable on first conviction by a term less

than life imprisonment, the court may place the person on probation or

Section 8.13
sentence the person to imprisonment for a term of not more than 1–

1/2 times the maximum term authorized for a first conviction, or for a
lesser term. MCL 769.10(1)(a).
 If the subsequent felony is punishable on first conviction by life
imprisonment, the court may place the person on probation or
sentence the person to imprisonment for life, or for a lesser term. MCL
769.10(1)(b).
*Sentences for  If the subsequent felony is a major controlled substance offense,* the
subsequent court must sentence the person as provided by MCL 333.7401 to
“major
controlled
333.7461. MCL 769.10(1)(c).
substance
offenses” are  The court may not sentence an offender to a maximum term of
discussed in imprisonment that is less than the maximum term indicated for a first
Section 8.16, conviction of the sentencing offense. MCL 769.10(2).
below.
The recommended minimum sentence range for an offender being sentenced

as a second habitual offender is indicated by the numeric values shown in the
“HO2” cells of each sentencing grid. The upper limit of a habitual offender’s
minimum range is calculated by reference to the percentage outlined in MCL
777.21(3)(a). The sentence enhancement authorized by MCL 769.10 refers to
the maximum sentence permitted by law for a specific offense as increased by
the applicable habitual offender provision and is not shown in the sentencing
grids. In the example below, the ranges recommended for a second habitual
offender are (in months): for level A-I, 0 to 3; for level B-I, 0 to 7; for level
C-I, 0 to 11; for level D-I, 2 to 21; for level E-I, 5 to 28; and for level F-I, 10
to 28.
PRV Level
3* 6* 9* 17* 23 23
I 3* 7* 11* 21 28 28 HO2
0-9
0 4*
0 9*
0 13*
2 25
5 34
10 34 HO3
Points
6* 12* 18* 34 46 46 HO4
MCL 769.10(1)(a) and (b), the provisions discussed above, specifically

designate probation as a possible disposition in cases involving a criminal
defendant being sentenced as a second habitual offender. MCL 771.1
authorizes a court in certain circumstances to place a defendant convicted of
a felony on probation rather than sentence the defendant to a term of
imprisonment. MCL 771.1(1) also applies to defendants being sentenced as
habitual offenders under MCL 769.10(1)(a) and (b) and limits the court’s use
of probation to specific circumstances:
“In all prosecutions for felonies, misdemeanors, or ordinance

violations other than murder, treason, criminal sexual conduct in
the first or third degree, armed robbery, or major controlled
substance offenses, if the defendant has been found guilty upon
verdict or plea and the court determines that the defendant is not
likely again to engage in an offensive or criminal course of
conduct and that the public good does not require that the
defendant suffer the penalty imposed by law, the court may place
the defendant on probation under the charge and supervision of a
probation officer.”
8.14 Third Habitual Offender Status (HO3)
A person who commits a felony in Michigan and who has been convicted of
any combination of two or more felonies or felony attempts (whether or not
the two or more previous convictions occurred in Michigan as long as the
violations would have been felony violations if the convictions had been
obtained in Michigan) is a third habitual offender subject to the following
penalties:
 If the subsequent felony is punishable on first conviction by a term of

imprisonment less than life, the court may sentence the person to a
term of imprisonment of not more than two times the maximum term
permitted by law for a first conviction of the offense, or to a lesser
term. MCL 769.11(1)(a).
 If the subsequent felony is punishable by life imprisonment on first
conviction, the court may sentence the person to life imprisonment, or
to a lesser term. MCL 769.11(1)(b).
 If the subsequent felony is a major controlled substance offense,* the *Sentences for
court must sentence the person as provided by MCL 333.7401 to subsequent
“major
333.7461. MCL 769.11(1)(c). controlled
substance
 The court may not sentence an offender to a maximum term of offenses” are
imprisonment that is less than the maximum term indicated for a first discussed in
conviction of the sentencing offense. MCL 769.11(2). Section 8.16,
below.
The recommended minimum sentence range for an offender being sentenced

as a third habitual offender is indicated by the numeric values shown in the
“HO3” cells of the respective sentencing grids. The upper limit of a third
habitual offender’s minimum range is calculated by reference to the
percentage outlined in MCL 777.21(3)(b). The sentence enhancement
authorized by MCL 769.11 refers to the maximum sentence permitted by law
for a specific offense as increased by the applicable habitual offender
provision and is not shown in the sentencing grids. In the grid below, the
ranges recommended for an individual being sentenced as a third habitual
offender are (in months): for level A-I, 0 to 4; for level B-I, 0 to 9; for level

Section 8.15
C-I, 0 to 13; for level D-I, 2 to 25; for level E-I, 5 to 34; and for level F-I, 10
to 34.
PRV Level
3* 6* 9* 17* 23 23
I 3* 7* 11* 21 28 28 HO2
0-9
0 4*
0 9*
0 13*
2 25
5 34
10 34 HO3
Points
6* 12* 18* 34 46 46 HO4
8.15 Fourth Habitual Offender Status (HO4)
A person who commits a felony in Michigan and who has been convicted of
any combination of three or more felonies or felony attempts (whether or not
the previous felony convictions were obtained in Michigan or in another state
as long as the offenses would have been felony offenses if they had occurred
in Michigan) is a fourth habitual offender subject to the following penalties:
 If the subsequent felony is punishable on first conviction by a

maximum term of imprisonment of five years or more or for life, the
court may sentence the person to life imprisonment, or to a lesser term.
MCL 769.12(1)(a).
 If the subsequent felony is punishable on first conviction by a
maximum term of imprisonment less than five years, the court may
sentence the person to a maximum term of imprisonment of 15 years.
MCL 769.12(1)(b).
*Sentences for  If the subsequent felony is a major controlled substance offense,* the
subsequent court must sentence the person as provided by MCL 333.7401 to
“major
controlled
333.7461. MCL 769.12(1)(c).
substance
offenses” are  The court may not sentence an offender to a maximum term of
discussed in imprisonment that is less than the maximum term indicated for a first
Section 8.16, conviction of the sentencing offense. MCL 769.12(2).
below.
The recommended minimum sentence range for a fourth habitual offender is

determined by reference to the numeric values shown in the “HO4” cells of
each sentencing grid. The upper limit of a habitual offender’s minimum range
is calculated by reference to the percentage outlined in MCL 777.21(3)(c).
The sentence enhancement authorized by MCL 769.12 refers to the maximum
sentence permitted by law for a specific offense as increased by the applicable
habitual offender provision and is not shown in the sentencing grids. In the
grid appearing below, the ranges recommended for a person being sentenced
as a fourth habitual offender are (in months): for level A-I, 0 to 6; for level B-

I, 0 to 12; for level C-I, 0 to 18; for level D-I, 2 to 34; for level E-I, 5 to 46;
and for level F-I, 10 to 46.
PRV Level
3* 6* 9* 17* 23 23
I 3* 7* 11* 21 28 28 HO2
0-9
0 4*
0 9*
0 13*
2 25
5 34
10 34 HO3
Points
6* 12* 18* 34 46 46 HO4
8.16 Sentencing an Offender for a Subsequent “Major

Controlled Substance Offense”
When an offender has a previous felony conviction and is subsequently

convicted of a “major controlled substance offense,” MCL 769.10(1)(c),
769.11(1)(c), and 769.12(1)(c) mandate application of the sentencing
provisions in part 74 of the Public Health Code (MCL 333.7401-333.7461).
However, as discussed below, the Court of Appeals and the Michigan
Supreme Court have held that if an offender has no prior felony convictions
for controlled substance offenses, the sentencing court may enhance an
offender’s sentence under the general habitual offender statutes.
A “major controlled substance offense” is limited to convictions for the

commission of one of nine crimes described in MCL 761.2(a)-(c):
• a violation of MCL 333.7401(2)(a)(i)-(iv).

• a violation of MCL 333.7403(2)(a)(i)-(iv).
• conspiracy to commit an offense under MCL 333.7401(2)(a)(i)-

(iv) or 333.7403(2)(a)(i)-(iv).
The “major controlled substance offense” described in MCL 333.7401(2)(a)

prohibits an individual from manufacturing, creating, delivering, or
possessing with the intent to manufacture, create, or deliver a controlled
substance listed in the statute, a prescription form, or a counterfeit
prescription form. Penalties for violating MCL 333.7401(2)(a) with respect to
specific quantities of cocaine or a narcotic drug listed in schedule 1 or 2 are as
follows:
• a violation involving 1,000 grams or more of a mixture containing

the controlled substance is a felony punishable by life
imprisonment or any term of years, a fine of not more than
$1,000,000.00, or both. MCL 333.7401(2)(a)(i).
• a violation involving 450 grams or more, but less than 1,000

grams, of a mixture containing the controlled substance is a felony

Section 8.16
punishable by not more than 30 years’ imprisonment, a fine of not

more than $500,000.00, or both. MCL 333.7401(2)(a)(ii).
• a violation involving 50 grams or more, but less than 450 grams,

of a mixture containing the controlled substance is a felony
more than $250,000.00, or both. MCL 333.7401(2)(a)(iii).
• a violation involving less than 50 grams of a mixture containing

the controlled substance is a felony punishable by not more than
20 years’ imprisonment, a fine of not more than $25,000.00, or
both. MCL 333.7401(2)(a)(iv).
Note: Ameliorative changes made to sentencing for major

controlled substance offenses are not retroactive. People v
Thomas, 260 Mich App 450, 459 (2004). In Thomas, the defendant
was sentenced to 10 to 20 years of imprisonment when MCL
333.7401(2)(a)(iii) had a mandatory minimum of ten years. The
Legislature plainly provided relief for defendants convicted and
sentenced before March 1, 2003, the date on which 2002 PA 665
eliminated the mandatory minimum sentence for the Thomas
defendant’s offense. Thomas, supra at 459. Defendants convicted
and sentenced before March 1, 2003, are entitled to early parole
eligibility “‘after serving the minimum sentence of each sentence
imposed for that violation or 5 years of each sentence imposed for
that violation, whichever is less.’” MCL 791.234(12); Thomas,
supra at 458-459.
The “major controlled substance offense” described in MCL 333.7403(2)(a)

prohibits an individual from knowingly or intentionally possessing a
controlled substance, a controlled substance analogue, or a prescription form
unless the controlled substance, analogue, or prescription form was obtained
directly from a valid prescription or order of a practitioner acting in the course
of his or her professional practice. Penalties for violating MCL
333.7403(2)(a) with respect to specific quantities of cocaine or a narcotic drug
listed in schedule 1 or 2 are as follows:
• a violation involving 1,000 grams or more of a mixture containing

the controlled substance is a felony punishable by life
imprisonment or any term of years, a fine of not more than
$1,000,000.00, or both. MCL 333.7403(2)(a)(i).
• a violation involving 450 grams or more, but less than 1,000

grams, of a mixture containing the controlled substance is a felony
more than $500,000.00, or both. MCL 333.7403(2)(a)(ii).
• a violation involving 50 grams or more, but less than 450 grams,

of a mixture containing the controlled substance is a felony
more than $250,000.00, or both. MCL 333.7403(2)(a)(iii).
• a violation involving 25 grams or more, but less than 50 grams, of

a mixture containing the controlled substance is a felony
punishable by not more than four years’ imprisonment, a fine of
not more than $25,000.00, or both. MCL 333.7403(2)(a)(iv).
A. Mandatory Sentence Enhancement—MCL 333.7413(1)

and (3)
MCL 333.7413(1) and (3) contain mandatory sentence enhancement

provisions for offenders who have multiple convictions of specific controlled
substance offenses. Those statutory provisions state:
“(1) An individual who was convicted previously for a violation of

any of the following offenses and is thereafter convicted of a
second or subsequent violation of any of the following offenses
shall be imprisoned for life and shall not be eligible for probation,
suspension of sentence, or parole during that mandatory term:
“(a) A violation of section 7401(2)(a)(ii) or (iii).
“(b) A violation of section 7403(2)(a)(ii) or (iii).
“(c) Conspiracy to commit an offense proscribed by

section 7401(2)(a)(ii) or (iii) or section 7403(2)(a)(ii) or
(iii).
***
“(3) An individual convicted of a second or subsequent offense *Subsection (4)

under section 7410(2) or (3) shall be punished, subject to deals with a
court’s
subsection (4),* by a term of imprisonment of not less than 5 years departure from
nor more than twice that authorized under section 7410(2) or (3) the minimum
and, in addition, may be punished by a fine of not more than 3 term of
times that authorized by section 7410(2) or (3); and shall not be imprisonment.
eligible for probation or suspension of sentence during the term of

imprisonment.”
These mandatory enhancement provisions apply only to offenders who have *See Section
been convicted of two or more of the drug-related offenses very specifically 8.9(A), above.
enumerated in MCL 333.7413(1) and (3). Note that not all of the “major
controlled substance offenses,” as defined in MCL 761.2, are included within
the mandatory enhancement provisions of MCL 333.7413(1) and (3). In
particular, MCL 333.7401(2)(a)(i) and (iv) and MCL 333.7403(2)(a)(i) and
(iv) are not included in MCL 333.7413(1). The offenses addressed by MCL
333.7413(3) are predicated on the offender’s violation of MCL
333.7401(2)(a)(iv) within 1,000 feet of school property.*
Where a defendant commits an eligible second offense before he or she is

convicted of the first offense, and is subsequently convicted of the second

Section 8.16
offense, MCL 333.7413(1) must be applied to the offender. The language of

MCL 333.7413(1) unambiguously requires that a defendant who has been
“convicted previously” of an enumerated offense and is “thereafter
convicted” of a second enumerated offense be sentenced according to the
provisions of 7413(1). People v Poole, 218 Mich App 702, 710-711 (1996).
There is no requirement under the Public Health Code’s enhancement
provisions that a conviction for an offender’s first offense be obtained before
the commission date of the offender’s second offense.
As written, the general habitual offender statutes do not require a sentencing

court to follow the Public Health Code’s sentencing scheme unless the
offender’s subsequent conviction is for a “major controlled substance
offense.” However, as discussed in subsection (B), below, it appears that a
sentencing court may sentence an offender convicted of a subsequent “major
controlled substance offense” under either of the two sentencing schemes,
without regard to the directive found in the general habitual offender statutes
for subsequent “major controlled substance offenses.”
B. Application of the General Habitual Offender Statutes to

Cases Involving Controlled Substance Offenses
Michigan’s appellate courts have addressed the issue whether the sentencing
scheme described in the general habitual offender statutes is to be
concurrently applied to criminal offenses contained in part 74 of the Public
Health Code or whether the scheme described in the Public Health Code
operates to the exclusion of the habitual offender provisions.
Michigan courts have consistently held that a defendant’s sentence cannot be

“doubly enhanced” by application of the habitual offender statutes and any
enhancement provisions contained in the statutory language prohibiting the
conduct for which the defendant was convicted. People v Elmore, 94 Mich
App 304, 305-306 (1979); People v Edmonds, 93 Mich App 129, 135 (1979).
With regard to the enhancement provisions contained in the controlled
substances act and those contained in the habitual offender provisions, the
Michigan Court of Appeals utilized standard statutory interpretation
principles to determine that the more specific sentence enhancements found
in the controlled substances act prevailed over general enhancement
provisions of the habitual offender statutes:
“It must be noted that application of the controlled

substances act penalty augmentation is proper when the
defendant is being sentenced on a drug conviction. If the
defendant commits a nondrug felony after one or more
drug convictions then the habitual offender act applies
upon conviction of that nondrug felony.” Edmonds, supra
at 135 n 1.
In People v Fetterley, 229 Mich App 511, 540-541 (1998), the defendant was
convicted of offenses that are not “major controlled substance offenses” and
his sentences were quadrupled when the trial court applied the enhancement
provisions of the Public Health Code and the habitual offender statutes to the
defendant’s underlying offenses. Id. at 525. The Court of Appeals held that
such “double enhancement” was improper. Id. at 540.
In People v Franklin, 102 Mich App 591 (1980), a defendant with prior felony
convictions, none of which was drug-related, was convicted of a “major
controlled substance offense.” The Court concluded that because the
defendant had no previous drug-related convictions, the Public Health Code’s
enhancement provisions (MCL 333.7413) were “inapplicable by [their] own
terms.” Franklin, supra at 593-594. Having concluded that section 7413 did
not apply to the defendant’s subsequent “major controlled substance offense,”
the Court held that the general habitual offender statutes could be used to
impose an enhanced sentence on the defendant based on the defendant’s
multiple prior felony convictions. Id. at 594.
According to the Michigan Supreme Court, sentence enhancement under

either the habitual offender sentencing scheme or the Public Health Code’s
subsequent offender sentencing scheme is proper where a defendant with
prior felony convictions is subsequently convicted of a “major controlled
substance offense.” People v Wyrick (Wyrick II), 474 Mich 947 (2005).
In Wyrick, the defendant was convicted of two drug-related offenses, one of

which was a “major controlled substance offense.” Specifically, the defendant
was convicted of possession of marijuana–second offense, a misdemeanor,
and the felony offense of possession with intent to deliver cocaine, one of the
“major controlled substance offenses.” Based on the number of his prior
felony convictions, the trial court sentenced the defendant as a fourth habitual
offender pursuant to MCL 769.12. People v Wyrick (Wyrick I), 265 Mich App
483, 485 (2005).
After disposing of the defendant’s appeal on grounds not relevant to the

discussion here, the Court of Appeals then addressed an additional issue that
had not been raised by either party—whether the trial court’s sentence
enhancement under the general habitual offender statutes was proper in light
of the statutory directive for imposing sentence on a defendant whose
subsequent conviction is for a “major controlled substance offense.” Wyrick
I, supra at 493. The Court of Appeals concluded that adherence to the plain
language used in the general habitual offender statutes, and in MCL 769.12
specifically, required that the defendant’s sentence, if enhanced, be enhanced
pursuant to the provisions in the Public Health Code. Consequently, the Court
remanded the case and instructed the trial court to amend the defendant’s
judgment of sentence to reflect that his sentence was enhanced pursuant to the
Public Health Code’s subsequent offender provision, and not pursuant to the
habitual offender provision. Wyrick I, supra at 494.
In Wyrick II, the Michigan Supreme Court, by peremptory order, reversed the
Court of Appeals. Relying on its decision in People v Primer, 444 Mich 269,
271-272 (1993), the Michigan Supreme Court’s order vacated “the Court of

Section 8.16
Appeals decision to remand the case to the trial court to alter the reference in
the judgment of conviction from enhancement under the Habitual Offender
Statute, MCL 769.12, to enhancement under the Public Health Code, MCL
333.7413(2). This change is unnecessary because the prosecutor may seek a
greater sentence under the Habitual Offender Statute even when a defendant
is sentenced under the Public Health Code.” Wyrick II, supra at 947.
C. Discretionary Sentence Enhancement—MCL 333.7413(2)
Unlike the provisions in MCL 333.7413(1) and (3), MCL 333.7413(2)

permits, but does not require, a sentencing court to double the term of
imprisonment authorized by the applicable statute for a first conviction of the
offense. Where an offender is convicted of a second or subsequent controlled
substance offense—“major” or “non-major”—MCL 333.7413(2) authorizes a
trial court to impose a term of imprisonment not more than twice the term
permitted for a first conviction of the offense. MCL 333.7413(2) states:
“Except as otherwise provided in subsections (1) and (3), an

individual convicted of a second or subsequent offense under this
article may be imprisoned for a term not more than twice the term
authorized or fined in an amount not more than twice that
otherwise authorized, or both.”
The discretionary authority in MCL 333.7413(2) to sentence a repeat offender

to not more than twice the term of imprisonment otherwise authorized
includes an increase in both the minimum and maximum terms in the range
recommended by the statutory sentencing guidelines. People v Williams, 268
Mich App 416, 429-431 (2005). In Williams, supra at 430-431, the trial court
properly concluded that MCL 333.7413(2) authorized it to double both values
in the range recommended under the guidelines—in that case, from the range
of 5 to 23 months “otherwise authorized” for conviction, to a range of 10 to
46 months. The Court of Appeals agreed:
“[T]he clear and unambiguous language of MCL 333.7413(2)

does not differentiate or suggest a distinction, either explicitly or
implicitly, between maximum and minimum sentences; therefore,
the word ‘term’ can entail and contemplate both maximum and
minimum sentences.” Williams, supra at 427.
See also People v Lowe, 484 Mich 718, 724 (2009) (“§ 7413(2)’s
authorization for a trial court to imprison a defendant for a ‘term not more than
twice the term otherwise authorized’ signifies that both the minimum and
maximum sentences must be doubled to fashion an enhanced sentence that is
twice the ‘term otherwise authorized’”).
MCL 333.7413(5) defines “second or subsequent offense”:
“[A]n offense is considered a second or subsequent offense, if,

before conviction of the offense, the offender has at any time been
convicted under this article or under any statute of the United

States or of any state relating to a narcotic drug, marihuana,
depressant, stimulant, or hallucinogenic drug.”
Like the outcome of the defendant’s challenge in Poole, supra at 710-711,

with regard to sentence enhancement under MCL 333.7413(1), an offender’s
convictions for purposes of MCL 333.7413(2) must follow one another: there
is no requirement in the statute regarding the temporal sequence of the
commission dates of the offenses on which the offender’s convictions are
based. People v Roseburgh, 215 Mich App 237, 239 (1996).
8.17 Application of the Habitual Offender Provisions to

Offenses Involving Statutory Escalation Schemes
Whether the habitual offender sentencing provisions may be concurrently

applied to specific subsequent felony convictions is dependent on whether the
Legislature has already provided a sentencing enhancement scheme for
successive felony violations. “Where the legislative scheme pertaining to the
underlying offenses elevates the offense, rather than enhances the
punishment, on the basis of prior convictions, both the elevation of the offense
and the enhancement of the penalty under the habitual offender provisions is
permitted.” People v Fetterley, 229 Mich App 511, 540-541 (1998). However,
where the statute under which a defendant was convicted enhances the
punishment based on prior convictions of that offense, use of the general
habitual offender provisions is improper. See e.g., People v Honeycutt, 163
Mich App 757, 760-762 (1987) (because MCL 750.227b, the felony-firearm
statute, mandates enhanced sentences for subsequent violations of that statute,
application of the general habitual offender provisions is improper).
A number of statutes elevate the severity of the offense based on an offender’s

prior conviction. This section contains discussion of the following:
• criminal sexual conduct offenses;
• OUIL offenses;
• retail fraud offenses; and
• fleeing and eluding offenses.
A number of statutes expressly prohibit use of an offender’s previous

conviction to enhance a sentence under the general habitual offender statutes
if the conviction is used to enhance the offense under the internal escalation
scheme. Appendix D contains a table of these offenses.

Section 8.17
A. Subsequent Criminal Sexual Conduct (CSC) Convictions
MCL 750.520f provides the penalties for offenders convicted of more than
one CSC offense. That provision requires that a defendant convicted of a
second or subsequent violation of MCL 750.520b (CSC-I), MCL 750.520c
(CSC-II), or MCL 750.520d (CSC-III) be sentenced to a mandatory minimum
term of at least five years. MCL 750.520f(1). For purposes of MCL 750.520f,
a “prior conviction” may be a conviction under MCL 750.520b, 750.520c,
750.520d, or a conviction “under any similar statute of the United States or
any state for a criminal sexual offense including rape, carnal knowledge,
indecent liberties, gross indecency, or an attempt to commit such an offense.”
MCL 750.520f(2). The mandatory minimum term of at least five years applies
to an offender with a “prior conviction” as defined above (under Michigan
law, federal law, or the law of another state) when that offender’s second or
subsequent conviction is for conduct prohibited by MCL 750.520b, 750.520c,
or 750.520d.
Note: CSC-I, CSC-II, and CSC-III are felony convictions whether

the conviction is a defendant’s first or fifth. CSC-IV, MCL
750.520e, is not designated as a “felony” offense by the statutory
language defining the crime. However, because CSC-IV is
punishable by more than one year of imprisonment, it is a “felony”
for purposes of the Code of Criminal Procedure. MCL 761.1(g).
Thus, CSC-IV may be used as a prior felony conviction to enhance
an offender’s sentence under the general habitual offender
provisions.
Because the habitual offender statutes address a defendant’s maximum

possible sentence and the subsequent offense provisions of MCL 750.520f
address a defendant’s minimum possible sentence, concurrent application of
the statutes is permitted. People v VanderMel, 156 Mich App 231, 234-235
(1986). A defendant’s habitual offender status and the applicability of MCL
750.520f to a defendant’s conviction may be based on the same previous
felony conviction. People v James, 191 Mich App 480, 482 (1991). In contrast
to the habitual offender statutes, MCL 769.10 et seq., no additional notice
need be filed to proceed against defendants charged as subsequent offenders
under MCL 750.520f. People v Bailey, 103 Mich App 619, 627-628 (1981).
B. Subsequent OUIL-3d Convictions
A defendant’s third or subsequent OUIL conviction constitutes a felony

regardless of the number of years that have elapsed between any prior
conviction. MCL 257.625(9)(c). For offenses occurring after January 3, 2007
(the effective date of amended MCL 257.625), a defendant may be charged
for a third or subsequent OUIL based on prior convictions that occurred more
than ten years before the date of the amendment, i.e., convictions that
occurred before January 3, 1997. People v Perkins, 280 Mich App 244, 245-
246 (2008). In Perkins, supra at 247-248, the trial court concluded that the

defendant’s prosecution under the amended MCL 257.625(9)(c) violated the

ex post facto clauses of the state and federal constitutions because the
amended statute allowed consideration of convictions that occurred more than
ten years before the amended statute’s effective date to enhance a defendant’s
sentence. The Court of Appeals disagreed and explained that although the
amended MCL 257.625(9)(c) “certainly works to [the defendant’s]
disadvantage, [it] did not attach legal consequences to [his] prior offenses,
which occurred before the amendment’s effective date. Rather, the
amendment made the consequences of [the defendant’s] current offense[],
which occurred after January 3, 2007, more severe on the basis of [the
defendant’s] prior convictions.” Perkins, supra at 251. Accordingly, the
defendant’s prosecution under the amended MCL 257.625 did not violate ex
post facto protections. Perkins, supra at 252. See also People v Sadows, 283
Mich App 65, 66 (2009) (MCL 257.625, as amended, does not violate federal
and state constitutional rights to equal protection and due process).
For purposes of OUIL offenses, a prior conviction may be a misdemeanor

conviction. A defendant’s conviction of OUIL-3d is a felony conviction that
may be used to establish a defendant’s habitual offender status under the
habitual offender sentencing statutes. People v Bewersdorf, 438 Mich 55, 69-
71 (1991); People v Stewart (On Remand), 219 Mich App 38, 43-44 (1996).
Note: Violations of MCL 257.625(9)(c) are subject to alternate

mandatory minimum sentences under MCL 769.34(2), and the
trial court may sentence the defendant to either alternative. See
People v Hendrix, 471 Mich 926 (2004), modifying in part 263
Mich App 18 (2004).
A defendant convicted of his or her first OUIL-3d offense who has no

previous felony convictions is not subject to sentence enhancement under the
habitual offender statutes. However, if a defendant has previous felony
convictions, the defendant’s first OUIL-3d is a felony that may be used to
enhance his or her sentence under the general habitual offender statutes. For
example, a defendant convicted of OUIL-3d (the sentencing offense) who had
two prior felony convictions could be sentenced as a third habitual offender to
a maximum of ten years.
C. Subsequent First-Degree Retail Fraud Convictions
The retail fraud statutes are similar to the OUIL statutes in that both statutory
schemes increase the severity of the offense from misdemeanor to felony as a
defendant is convicted of successive violations, and each successive violation
is subject to a possibly greater sentence. However, the statute governing retail
fraud offenses contains an express prohibition against using a defendant’s
previous felony conviction for enhancement under both the retail fraud statute
and the habitual offender statute. MCL 750.356c(6) states:
“If the sentence for a conviction under this section is enhanced by

1 or more prior convictions, those prior convictions shall not be
Section 8.17
used to further enhance the sentence for the conviction pursuant to

. . . MCL 769.10, 769.11, and 769.12.”
The corresponding language in the habitual offender statutes is included in

subparagraph (3) of each habitual offender statute:
“A conviction shall not be used to enhance a sentence under this

section if that conviction is used to enhance a sentence under a
statute that prohibits use of the conviction for further enhancement
under this section.” MCL 769.10(3), 769.11(3), and 769.12(3).
*See Section In addition to retail fraud offenses, there are numerous statutory schemes that
8.11(A). expressly prohibit using an offender’s previous conviction for enhancement
under the general habitual offender statutes if that conviction was used to
enhance the offender’s sentence under the statute prohibiting the conduct for
which the offender was convicted. The statutory schemes governing these
offenses contain a provision identical to the provision found in MCL
750.356c(6) (quoted above) and are listed in a table in Appendix D. Each
statutory scheme containing the express prohibition against using an
offender’s previous conviction to enhance a sentence under the general
habitual offender statutes if the conviction is used to enhance the offense
under the internal escalation scheme also contains a provision requiring the
prosecutor to file notice with the court of the intent to seek enhancement under
the statute based on an offender’s previous convictions. Similar to the notice
requirements of the general habitual offender statutes,* where a prosecutor
seeks to enhance an offense under an internal escalation scheme, the
prosecutor must list the offender’s previous convictions on which the
enhancement sought will be based.
D. Subsequent Fleeing and Eluding Convictions
*CSC-I/II/III are Both MCL 257.602a and MCL 750.479a prohibit fleeing and eluding a law
designated as enforcement officer. Like felony-firearm and criminal sexual conduct
felonies without
regard to
convictions, any fleeing and eluding conviction is a felony offense whether it
possible is a defendant’s first or fifth such conviction.* The statutory scheme
penalty. CSC-IV governing fleeing and eluding offenses does not contain a method for
is a felony imposing determinate sentences that increase or escalate with the number of
because it is
punishable by times a defendant is convicted of the same offense. Consistent with the
more than one Supreme Court’s decision in Bewersdorf, supra, the Michigan Court of
year of Appeals concluded that the general habitual offender statutes could be used to
imprisonment.
MCL 761.2.
enhance an offender’s sentence for fleeing and eluding where the offender’s
prior fleeing and eluding conviction was also used to elevate the severity of
the subsequent offense. People v Lynch, 199 Mich App 422, 424 (1993). At
the time Lynch was decided, a person could be convicted of misdemeanor
fleeing and eluding and any subsequent fleeing and eluding violation within
five years of the misdemeanor conviction constituted a felony fleeing and
eluding offense. In Lynch, the defendant’s sentencing offense was his second
fleeing and eluding offense within five years—a felony under the existing

statutory scheme. Because the defendant had two previous unrelated felonies,
he was properly sentenced as a third habitual offender. Id.
The following table illustrates the interaction of the general habitual offender
statutory provisions with the statutory penalty provisions contained in each
statutory context discussed above (OUIL, CSC, fleeing and eluding, and retail
fraud). Felony-firearm offenses are included as an example of a statutory
scheme in which the mandatory penalty escalates with the number of
convictions so that application of the general habitual offender statutes is not
permitted.
Misd’r Habitual Offender

# of
Offense conviction
or Statutory Penalty
Felony (HO) Penalty
Felony-firearm 1 F 2 yr mandatory NA
Habitual offender provisions do not apply. 2 F 5 yr mandatory NA
Determinate penalty increases w/ # of convictions. 3 F 10 yr mandatory NA
CSC-I 1 F Life/any term of yrs NA
Habitual offender provisions apply. 5 yr minimum,

5 yr minimum,
maximum of life/
Mandatory minimum for second/subsequent convictions 2+ F maximum of life/any
any term of yrs for
but severity of penalty possible does not escalate under term of yrs.
CSC scheme.
HO2, HO3, or HO4.
CSC-II 1 F Not more than 15 yrs NA

maximum of 22.5
5 yr minimum,
Mandatory minimum for second/subsequent convictions 2+ F yrs (HO2), 30 yrs
maximum of 15 yrs.
but severity of penalty possible does not escalate under (HO3), life/lesser
CSC scheme. term of yrs (HO4).
CSC-III 1 F Not more than 15 yrs NA

maximum of 22.5
5 yr minimum,
Mandatory minimum for second/subsequent convictions 2+ F yrs (HO2), 30 yrs
maximum of 15 yrs
but severity of penalty possible does not escalate under (HO3), life/lesser
CSC scheme. term of yrs (HO4).
CSC-IV 1 F* Not more than 2 yrs NA
Habitual offender provisions apply.

Not more than 3 yrs
Severity of penalty possible does not escalate.
2+ F* Not more than 2 yrs (HO2), 4 yrs (HO3),
*CSC-IV is a felony for purposes of HO statutes/ or 15 yrs (HO4).
sentencing guidelines because first offense is
punishable by more than 1 yr. See MCL 761.1(g).
Fleeing/Eluding (F/E) - 1st degree 1 F Not more than 15 yrs NA

(1st degree is F/E violation causing death)
Not more than 22.5
Habitual offender provisions apply. yrs (HO2), 30 yrs
2+ F Not more than 15 yrs
(HO3), life/lesser
Severity of penalty possible does not escalate under F/E term of yrs (HO4).
scheme.

Section 8.17
Fleeing/Eluding - 2nd degree 1 F Not more than 10 yrs NA

(current conviction + 1/more prior 1st/2nd/3rd F/
Es OR current + 2/more prior 4th degree F/Es)
Not more than 15
Habitual offender provisions apply. yrs (HO2), 20 yrs
(HO3), life/lesser
Prior convictions are used to increase severity of offense term of yrs (HO4).
but severity of penalty possible does not escalate under
F/E scheme.
Fleeing/Eluding - 3rd degree 1 F Not more than 5 yrs NA

(current conviction + prior 4th degree F/E)
Habitual offender provisions apply. Not more than 7.5

yrs (HO2), 10 yrs
Prior convictions used to increase severity of offense but (HO3), life/lesser
severity of penalty possible does not escalate under F/E term of yrs (HO4).
scheme.
Fleeing/Eluding - 4th degree 1 F Not more than 2 yrs NA
Habitual offender provisions apply. Not more than 3 yrs

2+ F Not more than 2 yrs (HO2), 4 yrs (HO3),
Severity of penalty possible does not escalate under F/E
15 yrs (HO4).
scheme.
OUIL 1 M Not more than 93 days NA
Minimum of 5 days,
(within 7 yrs of 1/more prior convictions) 2 M NA
maximum up to 1 yr.
HO provisions do
not apply unless
Minimum of 1 yr, defendant has prior
(within 10 yrs of 2/more prior convictions) 3 F
maximum up to 5 yrs. felony convictions
in addition to
current OUIL-3d.
Habitual offender provisions apply. 1 yr minimum, not

more than 7.5 yrs
Each OUIL conviction following first OUIL-3d is 1 yr minimum,
4+ F (HO2), 10 yrs
subsequent felony for purposes of HO status. Severity of maximum up to 5 yrs.
penalty does not escalate under OUIL scheme once (HO3), life/lesser
offense reaches felony status. term of yrs (HO4).
Retail Fraud (RF) - 1st degree 1 F Not more than 5 yrs NA

(property valued at $1000+ OR 2nd degree RF +
specified prior conviction)
If prior conviction(s)
Habitual offender provisions may apply. not excluded, not
more than 7.5 yrs
Prior convictions may be used to increase 2+ F Not more than 5 yrs
(HO2), 10 yrs
severity of offense under RF scheme. Any prior (HO3), life/lesser
conviction used to escalate offense severity term of yrs (HO4).
under RF statute cannot be used to enhance
possible penalty under HO statutes.
Retail fraud - 2nd degree 1 M Not more than 1 yr NA

(property valued at $200 to $1000 OR 3rd deg RF
+ specified prior conviction) 2 M Not more than 1 yr NA
Retail fraud - 3rd degree

1 M Not more than 93 days NA
(property valued at less than $200)

Part V—The Sentencing Hearing
8.18 Requirements and Rights

A defendant’s sentence, based on accurate information prepared in advance of *See Sections
the sentencing hearing for the purpose of fashioning an appropriate sentence, 8.41 and 8.42
for more
must be imposed “within a reasonably prompt time” after the defendant’s information on
conviction by plea or verdict unless the court has delayed the defendant’s delayed
sentencing in a manner provided by law.* MCR 6.425(E)(1). sentences and
other
alternatives.
A sentence based on inaccurate information implicates a defendant’s *Formerly MCR

constitutional right to due process. US Const, Am XIV; Const 1963, art I, § 6.425(D)(2)(a)–
(f). Effective
17; Townsend v Burke, 334 US 736, 740-741 (1948); People v Fleming, 428 July 13, 2005,
Mich 408, 431 (1987); People v Hoyt, 185 Mich App 531, 533 (1990). substantive
Because the sentencing proceeding and the information on which a sentencing changes were
court bases its sentencing decision are matters of constitutional magnitude, made and are
indicated where
the Michigan Supreme Court has required strict adherence to the detailed relevant.
statutory and court rule provisions that govern the sentencing process. At a
defendant’s sentencing hearing, the court must, on the record, satisfy the
requirements listed in MCR 6.425(E)(1)(a)-(f),* which are discussed below.
With the exception of rules involving privilege, the rules of evidence do not
apply to sentencing proceedings. MRE 1101(b)(3); People v Fisher, 442 Mich
560, 576-577 (1993); People v Potrafka, 140 Mich App 749, 752 (1985).
Moreover, even if testimony presented at a defendant’s sentencing hearing is
genuinely characterized as hearsay, the defendant is not deprived of any
constitutional right as long as he or she is given the opportunity to rebut any
information the defendant claims is inaccurate. People v Beard, 171 Mich
App 538, 548 (1988). See also People v Uphaus (On Remand), 278 Mich App
174, 183-184 (2008) (the defendant had an adequate opportunity to respond
to the hearsay testimony of a police officer concerning threats the defendant
allegedly made against other officers, when the defendant was permitted to
explain his position and argue that the officers were not credible).
The sentencing hearing is a critical stage in the criminal proceedings against

a defendant at which the defendant—absent a valid waiver—must be
represented by counsel. Mempa v Rhay, 389 US 128, 134 (1967); People v
Johnson, 386 Mich 305, 317 (1971). However, a criminal defendant does not
have an absolute right to be represented at sentencing by the same attorney
who represented him at trial. People v Davis, 277 Mich App 676, 679-680
(2008), vacated in part on other grounds 482 Mich 978 (2008). Even when the
defendant has previously waived his or her right to counsel, the trial court is
under a continuing duty to inform the defendant of the right to counsel and to
obtain the defendant’s valid waiver of that right at all subsequent proceedings,
including sentencing. MCR 6.005(E).

Section 8.19
Note: Effective January 1, 2006, the following provision will be

included in MCR 6.005(E):
“The court may refuse to adjourn a proceeding to appoint

counsel or allow a defendant to retain counsel if an
adjournment would significantly prejudice the
prosecution, and the defendant has not been reasonably
diligent in seeking counsel.”
A defendant’s right to counsel extends to certain ex parte presentence

conferences affecting the defendant:
 A trial court’s conference with a probation officer is a critical stage of

the proceedings at which the defendant has a right to be represented by
counsel. People v Oliver, 90 Mich App 144, 149-150 (1979), rev’d on
other grounds 407 Mich 857 (1979).
 A defendant has the right to be represented by counsel at a presentence
conference between the trial judge and a prosecutor. People v Von
Everett, 110 Mich App 393, 396-397 (1981).
 A defendant has the right to representation at a presentence conference
between the trial judge and a police officer. People v Vroman, 148
Mich App 291, 295-296 (1985), overruled in part on other grounds
431 Mich 282, 298 (1988).
 A defendant does not have a right to be represented by counsel at a
trial court’s presentence interview with the victim of the defendant’s
conduct. People v Rodriquez, 124 Mich App 773, 777 (1983).
8.19 Review of the PSIR

*See Section At the sentencing hearing, the court must determine that all parties
8.4 for detailed (prosecutor, defendant, and defense attorney) have had an opportunity to read
information
about the
and discuss the PSIR.* MCR 6.425(E)(1)(a).
content
required in a Effective July 13, 2005, MCR 6.425(B) requires the court to provide copies
PSIR. of the presentence report to the parties at a reasonable time before the day of
sentencing. Former subrule (B) did not require the court to provide copies of
the PSIR to the parties before sentencing. Formerly, the court was required to
allow the prosecutor, the defense attorney, and the defendant to review the
presentence investigation report at a reasonable time before the date of
sentencing. MCL 771.14(5) still contains this requirement.
The Michigan Supreme Court recognized, but did not quantify for purposes
of future application, the vagueness of the phrase, “a reasonable time before
the day of sentencing.” People v Hernandez, 443 Mich 1, 13 (1993). The
Hernandez Court stated:

“As the amici curiae observed, however, not all judges have the
same notion of what is a reasonable time. While some courts
provide the defendant a copy of the presentence report several
days before sentencing, other courts provide a copy the day of
sentencing, sometimes shortly before sentencing. Some
defendants are not given a reasonable time to review the report.”
Id. at 13.
Even though the Hernandez Court did not establish a minimum amount of
time to satisfy the “reasonable time” requirement, MCL 771.14(6) authorizes
the sentencing court to adjourn the hearing so that the parties may “prepare a
challenge or a response to a challenge” should any party claim that it was not
given adequate time before sentencing to review the PSIR.
8.20 Objections to Accuracy or Content of the PSIR
Due process requires that a defendant’s sentence be based on accurate

information and that the defendant be given an opportunity at sentencing to
challenge the accuracy of the information on which the trial court bases the
defendant’s sentence. People v Eason, 435 Mich 228, 233 (1990); People v
Zinn, 217 Mich App 340, 347-348 (1996). A sentence is invalid if it is based
on inaccurate information. People v Miles, 454 Mich 90, 96 (1997).
Each party must be given an opportunity at the sentencing hearing to explain

or challenge the accuracy or relevancy of any information contained in the
PSIR. MCR 6.425(E)(1)(b); MCL 771.14(6). When a defendant alleges
inaccuracies in his or her PSIR, the trial court must respond to those
allegations. People v McAllister, 241 Mich App 466, 473 (2000). However,
unless a defendant establishes an effective challenge to its contents, the
defendant’s PSIR is presumed accurate and may be relied on by the
sentencing court. People v Callon, 256 Mich App 312, 334 (2003).
MCL 771.14(6) and MCR 6.425(E) discuss the procedural requirements for *These
disposing of any contemporaneous objections to the information prepared for provisions are
detailed below
use at the sentencing hearing.* in Section 8.22.
Challenges to the accuracy or relevancy of information in the PSIR must be

made on the record. MCL 771.14(6). The court may adjourn the sentencing
hearing to permit the parties to prepare a challenge or a response to a
challenge. Id. Having given the parties the opportunity to challenge
information in the PSIR, the sentencing court is obligated to respond to all
challenges raised using any of the discretionary methods approved under the
statute, court rule, and relevant case law. MCL 771.14(6); MCR
6.425(E)(1)(b) and (2)(a)-(b).
The court must make a record of its response to the challenges raised, and the
presentence report must be amended accordingly. MCL 771.14(6); MCR
6.425(E)(2)(a).

Section 8.21
There are additional statutory and court rule provisions governing

postjudgment challenges to the content of a defendant’s PSIR. See MCL
769.34(10). Postjudgment appeals and issue preservation requirements are
discussed in Section 8.52, below.
8.21 Challenges to the Constitutional Validity of a Prior

Conviction or Adjudication
A defendant’s prior counseless convictions must not be considered in

sentencing. United States v Tucker, 404 US 443, 449 (1972); People v
Carpentier, 446 Mich 19, 31 n 6 (1994). Constitutionally infirm convictions
may not be used to establish a defendant’s habitual offender status or to
determine a defendant’s PRV level. People v Daoust, 228 Mich App 1, 18
(1998); People v Richert (After Remand), 216 Mich App 186, 195 (1996).
Similarly, a juvenile adjudication obtained in violation of the juvenile’s right
to counsel is constitutionally infirm and cannot be used to enhance a criminal
sentence. People v Ristich, 169 Mich App 754, 758 (1988). When a defendant
challenges the constitutional validity of a prior conviction used to establish
habitual offender status or to score the defendant’s PRVs, the trial court is
obligated to address and resolve the challenge. MCR 6.425(E)(1)(b).
*See Section Note: There are important distinctions between the use of a
8.5(A) for a defendant’s prior convictions to establish habitual offender status
detailed
discussion of
and the use of a defendant’s prior convictions or adjudications to
this rule. determine the defendant’s PRV level: (1) Prior convictions used to
establish a defendant’s habitual offender status are limited to prior
felony convictions; (2) PRV scoring accounts for all of a
defendant’s prior convictions, misdemeanor and felony, as well as
all of a defendant’s prior juvenile adjudications; (3) Prior
convictions used to establish a defendant’s habitual offender status
are not subject to the 10-year gap requirement;* and (4) Prior
convictions and juvenile adjudications used in scoring a
defendant’s PRVs must satisfy the 10-year gap requirement. This
section does not discuss a defendant’s prior convictions used to
establish habitual offender status. That issue is discussed fully in
Section 8.11.
A. Prima Facie Showing Required
A defendant who raises a challenge to a previous conviction allegedly

obtained in violation of the defendant’s Sixth Amendment right to counsel
bears the initial burden of establishing that the previous conviction was
obtained in violation of Gideon v Wainwright, 372 US 335 (1963); that is, the
defendant must show that the previous conviction was obtained without
counsel or without a proper waiver of counsel. Carpentier, supra at 31-32. A
defendant may satisfy this initial burden in one of two ways:

“1) by presenting ‘prima facie proof that a previous conviction was

violative of Gideon, such as a docket entry showing the absence of
counsel or a transcript evidencing the same,’ or
“2) by presenting evidence that the defendant requested such

records from the sentencing court and that the court either (a)
failed to reply to the request, or (b) refused to furnish copies of the
records, within a reasonable time.” Carpentier, supra at 31,
quoting People v Moore, 391 Mich 426, 440-441 (1974).
A defendant makes a prima facie case that a previous conviction was obtained
in violation of his or her right to counsel when the defendant presents a docket
entry showing that a conviction was obtained against the defendant while the
defendant was not represented by counsel. People v Zinn, 217 Mich App 340,
343-344 (1996). The defendant has met the burden under the second approach
when the defendant presents evidence that he or she requested records of the
previous convictions and the trial court from which the records were
requested either failed to reply to the defendant’s request or refused to supply
the defendant with the records. Id.
A defendant may establish a prima facie case where a notation on the

defendant’s PSIR supports the claim that one of the defendant’s two prior
juvenile adjudications was obtained in the absence of counsel. People v
Alexander, 207 Mich App 227, 230 (1994). In Alexander, the Court concluded
that the notation in the defendant’s PSIR was sufficient to shift the burden of
proof to the prosecution to prove that the disputed juvenile adjudication was
constitutional. Id.
Docket entries that are merely silent with regard to the defendant’s
representation do not provide the prima facie proof required to shift the
burden to the prosecution to show that the defendant’s previous conviction did
not violate his or her constitutional right to counsel. Zinn, supra at 344.
Similarly, that a defendant simply “ha[s] not received” the requested records
is insufficient to satisfy the defendant’s burden of proof. Carpentier, supra at
32-33.
“[The requirement of] Moore is in part directed at those situations

in which a sentencing court affirmatively and intentionally acts to
deny a defendant access to requested trial records. For example,
where a sentencing court ignores a proper request for records, that
court has ‘failed to reply’ within the meaning of Moore.
Alternatively, where a court refuses to forward records in its
possession or control, that court has ‘refused to furnish’ under
Moore. Accordingly, to interpret Moore as only requiring a
defendant to have requested but not received trial records opens
the door to collateral challenges in a variety of situations not
intended by the strict and narrow rule of Moore.” Carpentier,
supra at 33.

Section 8.21
In Carpentier, the defendant’s request was met with neither of the two
qualifying responses detailed in Moore. The sentencing court did not fail to
reply to the defendant’s request because it sent the defendant a letter
explaining that the defendant’s records were unavailable. Carpentier, supra at
33-34. Further, the sentencing court did not refuse to furnish records in its
possession because the court no longer possessed expunged court records. Id.
at 34. The absence or unavailability of a defendant’s records does not satisfy
the defendant’s initial burden. Id. at 34 n 9.
B. Burden-Shifting Analysis
If a defendant makes a prima facie showing the burden shifts to the

prosecution, and the court must hold a Tucker hearing where the prosecution
has the burden of establishing that the prior conviction was constitutionally
valid. Carpentier, supra at 31, citing Tucker, supra.
In Alexander, where the defendant’s PSIR contained a notation that one of his
prior juvenile adjudications was obtained in the absence of counsel, the
burden shifted to the prosecution to show that the adjudication was not
unconstitutional. Alexander, supra at 230. Generally, the prosecution may
satisfy this burden in one of three ways:
• producing evidence that the defendant was, in fact, represented by

counsel at the prior conviction or adjudication;
• producing evidence that the defendant effected a valid waiver of
the right to counsel at the prior conviction or adjudication; or
• producing evidence that no right to counsel existed at the prior

conviction or adjudication.
Because the record did not indicate whether the prior juvenile adjudication
was for an offense punishable by imprisonment, the Alexander Court
remanded the case for the trial court to determine whether the disputed
adjudication had been obtained in violation of the defendant’s right to
counsel. Id. See also Daoust, supra at 19 (the defendant’s juvenile
adjudications were properly considered because even though the
adjudications were obtained in the absence of counsel, the record did not show
that any of the adjudications resulted in incarceration).
There is no federal or state constitutional right to appointed counsel when a

defendant is charged with a misdemeanor and no sentence of imprisonment is
imposed. Richert, supra at 192-194. Thus, a prior counselless conviction or
adjudication is properly considered by the sentencing court for the purposes
of scoring the defendant’s PRVs when no right to counsel existed.
Absent any other constitutional infirmity (and presumably subject to the 10-
year gap requirement for PRV scoring), a defendant’s expunged juvenile

records are properly considered when imposing sentence. People v Smith, 437
Mich 293, 301-302 (1991).
8.22 Sentencing Court’s Duty to Remedy Errors
If a party challenges the accuracy or relevance of any information in the PSIR,

the court must allow the parties to be heard and resolve the challenges. MCR
6.425(E)(2).
MCR 6.425(E)(2) requires the trial court to do one of the following:
 make a finding about the challenged information; that is, the court
must determine whether the information is accurate or relevant, or
 determine that a finding is not necessary because the challenged
information will not be considered by the court in fashioning the
defendant’s sentence.
A sentencing court has “wide latitude” in fulfilling its duty under MCR
6.425(E)(2) to respond to claims of inaccuracy in a presentence report. People
v Spanke, 254 Mich App 642, 648-649 (2003). Regardless of the method
chosen by the court, a sentencing court must resolve a party’s properly raised
challenge to the accuracy or relevance of information on which the sentencing
court bases its sentencing decision. See e.g., People v Garvie, 148 Mich App
444, 454-455 (1986) (a judge must do more than acknowledge the defendant’s
claims; the judge must express an opinion as to their merit), People v
Harrison, 119 Mich App 491, 496 (1982) (“even though what the judge does
is discretionary, it is clear that the judge must do something”), and People v
Major, 106 Mich App 226, 230 (1981) (a court’s failure to exercise discretion
when obligated to do so is error). MCR 6.425(E)(2), discussed below, outlines
the court’s obligations in resolving any challenges to the information used at
sentencing.
A. Determining the Information’s Accuracy or Relevance
If the sentencing court determines that the challenged information is

inaccurate or irrelevant, the information must either be struck from or
corrected in a defendant’s PSIR before the report is sent to the Department of
Corrections. Spanke, supra at 649; MCL 771.14(6); MCR 6.425(E)(2)(a);
People v Russell, 254 Mich App 11, 22 (2002), rev’d on other grounds 471
Mich 182 (2004); People v Paquette, 214 Mich App 336, 346-347 (1995).
Remand is necessary to correct factual inaccuracies in a defendant’s PSIR.
Spanke, supra at 650. Whenever information is corrected in or deleted from a
defendant’s PSIR, the defendant’s attorney must be given the opportunity to
review the amended PSIR before it is forwarded to the Department of
Corrections. MCR 6.425(E)(2)(b).

Section 8.22
An investigating officer’s opinion need not be struck from a defendant’s PSIR

when the opinion is not declared to be a statement of fact. Spanke, supra at
649. Similarly, a trial court need not resolve or correct a claimed inaccuracy
in a defendant’s PSIR where the defendant’s objection to the information
“was not to an alleged factual inaccuracy in the report but to a conclusion
drawn from the undisputed facts.” People v Wybrecht, 222 Mich App 160,
173 (1997), quoting People v Greene, 116 Mich App 205, 210 (1982), rev’d
on other grounds 414 Mich 896 (1982).
See also People v Uphaus (On Remand), 278 Mich App 174, 181-182 (2008)
(trial court properly declined to strike from the PSIR the investigator’s
comment that the defendant was “paranoid,” where the term “paranoia” did
not represent a clinical evaluation of the defendant’s actual mental condition,
but rather, it was a colloquial term used to characterize certain noteworthy
statements made by the defendant).
B. Ignoring the Disputed Information
If the sentencing court decides to ignore disputed information in the PSIR

when imposing sentence, “it must clearly indicate that it did not consider the
alleged inaccuracy in determining the sentence.” Spanke, supra at 649. Where
the sentencing court’s response to a defendant’s allegation of inaccuracy is
ambiguous, remand is necessary. People v Brooks, 169 Mich App 360, 364-
365 (1988).
*Formerly MCR A trial court’s decision that it will not consider information in a defendant’s
6.425(D)(3)(a). PSIR that the defendant claims is inaccurate does not conclude the trial court’s
responsibility regarding the challenged information. MCR 6.425(E)(2)(a)*
expressly requires the court to order that the defendant’s PSIR be amended in
accordance with the trial court’s finding. People v Britt, 202 Mich App 714,
718 (1993).
In addition to the record indicating that the sentencing court did not consider
the challenged information at sentencing, the information must be deleted
from the defendant’s PSIR, and the defendant’s attorney must be given an
opportunity to review the amended PSIR before it is forwarded to the
Department of Corrections. People v Harmon, 248 Mich App 522, 533
(2001); MCR 6.425(E)(2)(b).
C. Harmless Error
A trial court’s failure to respond to a defendant’s challenge to information

contained in his or her PSIR or introduced at his or her sentencing hearing
may be harmless error if the inaccuracies alleged by the defendant would have
no effect on the sentence imposed. McAllister, supra at 473-474 (although the
defendant was employed part-time, his PSIR indicated he was unemployed).

Where the defendant failed to preserve the issue for appeal,* the Court of *See Section
Appeals declined to remand the defendant’s PSIR to correct the plain error 8.52 for a
detailed
regarding the crime for which the defendant was convicted. People v discussion of
McCrady, 244 Mich App 27, 32 (2000). In McCrady, the defendant’s PSIR appellate
indicated he was convicted of first-degree premeditated murder when, in fact, review and
the jury had convicted him of felony-murder. Id. The Court of Appeals issue
preservation
acknowledged that the PSIR’s misstatement was plain error but the Court requirements.
noted that the error did not affect the defendant’s substantial rights and
remand was unnecessary. Id.
Note: The Michigan Supreme Court has required strict adherence *Formerly MCR
to the mandate in MCR 6.425(E)(2)* when the accuracy of 6.425(D)(3).
information contained in a defendant’s PSIR is disputed. In lieu of
granting leave to appeal in two cases decided under the statutory
sentencing guidelines, the Court remanded the cases to the
appropriate circuit court
“for determination whether the presentence report contains

information which is inaccurate . . . . If it is determined by
the circuit court that inaccurate information is included in
the presentence report, the report is to be corrected or the
information deleted in accordance with MCR 6.425(D)(3)
and the corrected report is to be forwarded to the
Department of Corrections.” People v Hart, 469 Mich 853
(2003) (failure of the defendant’s PSIR to specify a date
certain relating to the defendant’s prior criminal history);
and People v McGee, 469 Mich 853 (2003) (information
relating to the defendant’s trafficking in marijuana and the
date that the defendant began using alcohol).
See also People v Carino, 456 Mich 865 (1997) and People v
Krist, 413 Mich 937 (1982).
8.23 Allocution
The defendant, the defendant’s lawyer, the prosecutor, and the victim must be *Formerly MCR
given the opportunity to allocute—“to advise the court of any circumstances 6.425(D)(2)(c).
they believe the court should consider in imposing sentence.” MCR
6.425(E)(1)(c).*
“‘Allocution’ generally refers to ‘[a]n unsworn statement from a

convicted defendant to the sentencing judge or jury in which the
defendant can ask for mercy, explain his or her conduct, apologize
for the crime, or say anything else in an effort to lessen the
impending sentence.’” People v Petty, 469 Mich 108, 119 n 7
(2003), quoting Black’s Law Dictionary, 7th ed.

Section 8.23
Generally, a trial court’s failure to permit a defendant the opportunity to

allocute at sentencing entitles the defendant to resentencing. People v Wells,
238 Mich App 383, 392 (1999). See United States v Haygood, 549 F3d 1049,
1055 (2008) (in federal court, prejudice is presumed when allocution is
overlooked, and a new sentencing hearing must be held when a defendant
does not receive the shortest allowable sentence because it is at least possible
that the defendant’s allocution might have affected the sentence imposed).
MCR 6.425(E)(1)(c) is “straightforward” in its requirement that a defendant

must be given the “opportunity” to address the court before sentence is
imposed; however, the court rule does not require a sentencing court to make
a “personal and direct inquiry” of the defendant to determine whether he or
she would like to speak in his or her own behalf. People v Petit, 466 Mich 624,
628-629 (2002). In Petit, the sentencing court complied with the mandate of
the court rule by “generally asking if there was ‘anything further.’” Id. at 629,
636. The Petit Court explained:
“Although we conclude that the trial court here did comply with
the court rule, we note that asking generally if there is ‘anything
further’ is certainly not the best way to provide a defendant with
an opportunity to allocute. Rather, the best way to provide such an
opportunity is to specifically ask the defendant if he has anything
to say.
“The dissent emphasizes that to require a specific inquiry would

establish a bright line rule that would be easy to understand and
easy to apply. While this is unquestionably true, we do not agree
that such a specific inquiry is necessarily required by the court
rule.” Id. at 629 n 3 (internal citation omitted).
The Petit Court, in so interpreting MCR 6.425, overruled People v Berry, 409
Mich 774, 781 (1980), which indicated that the trial court must “inquire
specifically of the defendant separately whether he or she wishes to address
the court before the sentence is imposed.” Petit, supra at 631-633.
Resentencing is not required where after realizing it had neglected to give the
defendant an opportunity to address the court, a trial court afforded the
defendant an opportunity to allocute, even though the trial court had already
imposed sentence and stated that the defendant’s allocution was not likely to
change the court’s sentencing decision. Wells, supra at 392.
Where no record evidence indicated that the trial court had decided on a
particular sentence before the defendant’s allocution, a defendant’s right to
allocute at his or her sentencing hearing is not rendered meaningless simply
because the sentencing judge has prepared a written statement of reasons for
departing from the sentencing guidelines before the sentence is actually
imposed. People v Grady, 204 Mich App 314, 316 (1994).

“[T]he mandatory nature of a sentence does not ipso facto render the
common-law right to allocute inapposite.” People v Petty, 469 Mich 108, 120
(2003). Even where a defendant’s statement will not affect the sentence
imposed—as in a mandatory term or the penalty outlined in a sentence
agreement—a defendant must be given the opportunity to allocute. People v
Smith, 96 Mich App 346, 348-349 (1980).
A juvenile’s right to allocution. A juvenile defendant who is convicted in a

designated case proceeding and who receives an adult sentence must be given
an opportunity to allocute at his or her sentencing hearing. Petty, supra at 121.
In Petty, the Michigan Supreme Court remanded a juvenile’s case to the trial
court for resentencing where a juvenile defendant was not permitted to
allocute before the court imposed an adult sentence. Id. at 122-123. The Court
stated:
“To deny a juvenile a meaningful opportunity to allocute at the

only discretionary stage of a combined dispositional and
sentencing proceeding would seriously affect the fairness and
integrity of the judicial proceeding, particularly when the juvenile
is subject to an adult criminal proceeding.” Id. at 121.
The Petty Court’s ruling prompted an immediate amendment to MCR

3.955(A). In addition to the prosecutor, the victim, and the defendant’s
attorney, the court rule requires that a juvenile defendant be given “an
opportunity to advise the court of any circumstances [the defendant]
believe[s] the court should consider” before imposing sentence. MCR
3.955(A); Petty, supra at 121-122 n 9.
8.24 Crime Victim’s Impact Statement

A crime victim has a constitutional right “to make a statement to the court at *See Miller,
sentencing.” Const 1963, art 1, §24. The Crime Victim’s Rights Act (CVRA) Crime Victim
Rights
entitles a victim to the opportunity to make a statement about the impact of the Manual—
offense at the defendant’s sentencing hearing.* MCL 780.765; People v Revised Edition
Williams, 244 Mich App 249, 253-254 (2001); People v Cobbs, 443 Mich (MJI, 2005-April
276, 285 (1993). Additionally, a crime victim may have submitted a written 2009), Chapter
9.
impact statement for consideration in preparing the defendant’s PSIR. MCL
780.764; Cobbs, supra at 285. The victim must be informed that the PSIR in
its entirety will be available to the defendant unless the court exempts certain
portions from disclosure. MCL 780.763(1)(e). The court has authority to
exempt from disclosure “sources of information obtained on a promise of
confidentiality.” MCL 771.14(3); MCR 6.425(B). When information is
exempted from disclosure, the court must state on the record its reasons for
the exemption, inform the parties of the nondisclosure, and include a notation
in the PSIR indicating the exemption. MCL 771.14(3); MCR 6.425(B). If a
crime victim requests that his or her written impact statement be included in
the defendant’s PSIR, the statement must be included. MCL 771.14(2); MCL
780.764.

Section 8.24
For purposes of the crime victim’s written and oral impact statements,
“victim” is broadly defined in the CVRA as follows:
*“Person”  An individual* who suffers direct or threatened physical, financial, or

includes both emotional harm as the result of the commission of a crime. MCL
individuals and
business or
780.752(1)(m)(i).
governmental
entities. MCL  If the victim is deceased, one of the following (other than the
780.752(1)(g). defendant or the juvenile offender) in descending order of priority:
– the spouse of the deceased victim (if any), MCL

780.752(1)(m)(ii)(A);
– a child of the deceased victim if the child is 18 years old or older

(if any), MCL 780.752(1)(m)(ii)(B);
– a parent of the deceased victim (if any), MCL

780.752(1)(m)(ii)(C);
– the guardian or custodian of a child of the deceased victim if the

child is younger than 18 years of age (if any), MCL
780.752(1)(m)(ii)(D);
– a sibling of the deceased victim (if any), MCL
780.752(1)(m)(ii)(E); or
– a grandparent of the deceased victim (if any), MCL

780.752(1)(m)(ii)(F).
 A parent, guardian, or custodian (if the individual is not the defendant
and is not incarcerated) of a victim who is younger than 18 years of
age if the parent, guardian, or custodian so chooses. MCL
780.752(1)(m)(iii).
 A parent, guardian, or custodian (if the individual is not the defendant
and is not incarcerated) of a victim who is mentally or emotionally
unable to participate in the legal process. MCL 780.752(1)(m)(iv).
*See Miller, A crime victim has the right to make an oral impact statement at the
Crime Victim defendant’s sentencing hearing.* MCL 780.765. A crime victim who is
Rights
Manual—
physically or emotionally unable to make an oral impact statement at the
Revised Edition defendant’s sentencing hearing may designate any other person (who is at
(MJI, 2005-April least 18 years of age and who is not the defendant and who is not incarcerated)
2009), Section to make the impact statement on his or her behalf. Id.
9.2.
The possible content of a defendant’s PSIR (which may include a victim’s

impact statement) is not limited by statute or court rule. People v Fleming, 428
Mich 408, 418 (1987). Therefore, a defendant’s PSIR
“may include information about a defendant that was not

admissible nor admitted at defendant’s trial or plea including
hearsay, character evidence, prior convictions or alleged criminal

activity for which defendant was not charged or convicted, and the
victims’ version of the offense.” Id.
The CVRA requires that a victim be given specific notice that his or her
impact statement may include, but is not limited to, the following subject
matter:
“(a) An explanation of the nature and extent of any physical,

psychological, or emotional harm or trauma suffered by the
victim.
“(b) An explanation of the extent of any economic loss or property

damage suffered by the victim.
“(c) An opinion of the need for and extent of restitution and

whether the victim has applied for or received compensation for
loss or damage.
“(d) The victim’s recommendation for an appropriate sentence.”

MCL 780.763(3)(a)–(d).
Subject to the defendant’s objections to the information at sentencing and the

sentencing court’s duty to resolve disputes, the content of a defendant’s PSIR
and by extension, the content of any victim impact statements included in the
PSIR, are properly considered by the sentencing court in making its
sentencing decision. Fleming, supra at 418-419. Even where the defendant
was acquitted of the offense detailed in the victim’s impact statement, the
statement was properly included in the defendant’s PSIR where there was no
evidence that the defendant was denied an opportunity to refute the victim’s
statement. People v Pureifoy, 128 Mich App 531, 536 (1983).
In addition to the specified or “statutory” victim’s statement, a sentencing

court has broad discretion over the type and source of information permitted
at the hearing and on which the court may rely in imposing the defendant’s
sentence. People v Albert, 207 Mich App 73, 74-75 (1994). In Albert, the trial
court permitted the attorney representing one of the victims in a civil case
against the defendant to address the court at sentencing. Id. at 74. Because the
Court of Appeals could “perceive no bias or prejudice on the part of the
sentencing court” as a result of the attorney’s statements about the defendant,
the court did not abuse its discretion in permitting the attorney to speak. Id.
Where a defendant has reviewed the PSIR and its attachments and is given an
opportunity to raise any objection to their content, there is no error. People v
Kisielewicz, 156 Mich App 724, 728 (1986). Consistent with the purpose
expressed in the applicable statutes and court rule that a PSIR “should contain
a broad range of information so that the sentence can be tailored to fit the
circumstances of the individual defendant,” the trial court properly considered
several letters received from individuals other than the “statutory” victims
because each letter “concerned society’s perceived need for protection from
the offender.” Id. at 729.
Section 8.24
Absent any evidence that the information presented at sentencing caused the
court to act with bias or prejudice toward the defendant, the court may
consider any information about the defendant’s life and characteristics
provided the information is relevant to the court’s sentence determination.
Albert, supra at 74-75; McAllister, supra at 476. However, letters and other
communication from the victim, the victim’s family members, and other
individuals must be disclosed to the defendant if the court will rely on
information contained in the letters when it sentences the defendant. Id. at
474-476. Disclosure preserves the defendant’s right to respond to the
information on which his or her sentence is based. Id. at 476.

omitted).
*Formerly MCR In People v Grove, 455 Mich 439 (1997), the defendant objected at sentencing
6.425(D)(3)(a). to “inadmissible information attached to the presentence report.” Id. at 452.
The information to which the defendant objected consisted of two letters
written by a law enforcement official asserting that the “defendant was a
sexual predator” and including details of “unrelated and unsubstantiated
allegations of sexual misconduct by defendant.” Id. The sentencing court
indicated it would not consider the disputed information but failed to delete
the information from the defendant’s PSIR before it was forwarded to the
Department of Corrections. Id. The Michigan Supreme Court agreed with the
Grove defendant and remanded the case for correction of the defendant’s
PSIR as required by MCR 6.425(E)(2)(a).* Grove, supra at 452, 477.

In a case consolidated with Grove, the Court remanded a case for deletion of
a letter attached to the defendant’s PSIR after the Court of Appeals had
reviewed the defendant’s claim and “f[ou]nd this error harmless in light of the
trial court’s express statement on the record that the information was not
considered in passing sentence.” People v Austin, 209 Mich App 564, 571
(1995), aff’d in part, rev’d in part, and remanded sub nom Grove, supra.
8.25 Additional Information Required at Sentencing
In addition to the content already discussed, the record of a defendant’s

sentencing hearing must also include the following:
 The court must state the sentence being imposed, the minimum and *See Section
maximum term of the sentence if applicable, and any credit for time 8.31 for
discussion of
served* to which the defendant is entitled. MCR 6.425(E)(1)(d). sentence credit.
 “[I]f the sentence imposed is not within the guidelines range, [the *See Section
court must] articulate the substantial and compelling reasons* 8.30 for proper
and improper
justifying that specific departure[.]” MCR 6.425(E)(1)(e). considerations.
 The court must “order that the defendant make full restitution* as *Restitution is
required by law to any victim of the defendant’s course of conduct that discussed in
Section 8.37.
gives rise to the conviction, or to that victim’s estate.” MCR
6.425(E)(1)(f).
Part VI—Fashioning an Appropriate Sentence
8.26 Scope and Objectives
The trial court’s objective in sentencing a defendant is to tailor a penalty that

is appropriate to the seriousness of the offense and the criminal history of the
offender. People v Rice, 235 Mich App 429, 445 (1999), citing People v
Milbourn, 435 Mich 630, 636 (1990). The “framework” of an appropriate
sentence consists of four basic considerations:
 the likelihood or potential that the offender could be reformed;
 the need to protect society;
 the penalty or consequence appropriate to the offender’s conduct; and
 the goal of deterring others from similar conduct.
Rice, supra at 446; People v Adams, 430 Mich 679, 686 (1988); People v
Snow, 386 Mich 586, 592 (1972).

Section 8.26
“[A] sentencing judge does not have unfettered discretion.

Numerous checks shield the defendant from an arbitrary sentence
and help to insure that the objective of personalized disposition is
achieved. In addition to the compilation of a presentence report
and scoring under the sentencing guidelines, other decisions of
this Court limit consideration of factors deemed inappropriate in
sentencing, helping to insure that the judge enjoys a broad, yet fair,
knowledge of the defendant and the circumstances of the crime of
which he is convicted.” Adams, supra at 687 (footnotes omitted).
Court rule and statutory provisions require the court to use the sentencing
guidelines as provided by law when determining the length of a defendant’s
sentence. MCR 6.425(D); MCL 769.34(2). “Proposed scoring of the
guidelines shall accompany the presentence report.” MCR 6.425(D).
Even when evidence is not admissible at the defendant’s trial, a sentencing

court may properly consider it in determining an appropriate sentence. People
v Watkins, 209 Mich App 1, 5-6 (1995).

omitted).
A. Intermediate Sanctions
In addition to the sentencing considerations listed above, fashioning an

appropriate sentence under the statutory guidelines requires the court’s

attention to the offender’s PRV and OV scores and the specific cell in which
those scores place the offender in the appropriate sentencing grid.
“Intermediate sanction cells” are those cells in which the upper limit of the
minimum range recommended under the guidelines is 18 months or less.
MCL 769.34(4)(a). Intermediate sanction cells are marked with an asterisk in
the example below, and in the sentencing grids published in this monograph
and in the State of Michigan Sentencing Guidelines Manual.
PRV Level
OV
A B C D E F
Offender
3* 6* 9* 17* 23 23
I 3* 7* 11* 21 28 28 HO2
0-9 0 4*
0 9*
0 13*
2 25
5 34
10 34 HO3
Points
6* 12* 18* 34 46 46 HO4
Absent a departure from the guidelines,* a trial court must impose an *Departure from
intermediate sanction when the offender’s PRV and OV scores place him or the
recommended
her in an intermediate sanction cell. MCL 769.34(4)(a). An intermediate minimum
sanction is any sanction other than imprisonment in a state prison or state sentence is
reformatory that may be lawfully imposed on an offender. MCL 769.31(b). discussed in
Where a specific cell in a sentencing grid requires a court to impose an Sections 8.48–
8.51, below.
intermediate sanction, the court must comply with the mandate or articulate
for the record a substantial and compelling reason for departure. People v
Stauffer, 465 Mich 633, 636 (2002).
A trial court’s judicial fact-finding to score an offender’s OVs and PRVs does *Affirming
not offend the principles espoused in Blakely v Washington, 542 US 296 People v
McCuller, 475
(2004), because under Michigan’s “true indeterminate sentencing scheme,” Mich 176 (2006)
the guidelines as scored never increase the statutory maximum sentence (McCuller I),
applicable to the scored offense and to which a defendant is subject when which was
convicted of the scored offense. People v McCuller, 479 Mich 672 (2007) vacated by the
United States
(McCuller II).* Because no Blakely violation occurs when a court engages in Supreme Court
judicial fact-finding to score a defendant’s OVs, a minimum range with the and remanded
possibility of prison that results from scoring a defendant’s OVs and PRVs is in light of
Cunningham v
constitutionally and statutorily sound even if the defendant’s PRV total alone California, 549
would place him in an intermediate sanction cell. McCuller II, supra at 677. US 270 (2007).
In addition, under Michigan’s sentencing scheme,
“A sentencing court scores the OVs only to calculate the

recommended range for the minimum portion of the defendant’s
sentence, not to arrive at the defendant’s maximum sentence,
which is set by statute. The conditional limit on incarceration
contained in MCL 769.34(4)(a)—an intermediate sanction—does
not establish the defendant’s statutorily required maximum
sentence authorized by the jury’s verdict or the guilty plea, but is
instead a matter of legislative leniency, giving a defendant the
opportunity to be incarcerated for a period that is less than that

Section 8.26
authorized by the jury’s verdict or the guilty plea.” McCuller II,

supra at 677-678; People v Harper, 479 Mich 599, 603-604
(2007).
Notably, in McCuller II, the Michigan Supreme Court further noted that even
if the sentence imposed did violate Blakely, the error was harmless because
“[t]he factors underlying the scoring of the OVs were uncontested and
supported by overwhelming evidence,” and the Court was “firmly convinced
that a jury would have reached precisely the same result.” McCuller II, supra
at 678.
Note: McCuller II is one of three companion cases concerning the

application of Blakely principles to Michigan’s sentencing
scheme. The Blakely issue as applied to intermediate sanctions
was addressed in detail by the Court in People v Harper (People v
Burns), 479 Mich 599 (2007).
Sanctions that are considered intermediate sanctions include, but are not
limited to, any one or more of the following:
• inpatient or outpatient drug treatment or participation in a drug

treatment court (MCL 600.1060 to 600.1082);
*See Section • probation* with conditions required or authorized by law;
8.40 for a
detailed • residential probation;
discussion of
probation.
*See Section • probation with jail or probation with special alternative

8.47. incarceration (SAI);*
• mental health treatment;
• mental health or substance abuse counseling;
• jail, with or without work or school release;
• jail, with or without day parole authorized under MCL 801.251 to

801.258;
• participation in a community corrections program;
• community service;
*See Section • payment of a fine;*
8.33.
• house arrest; and
• electronic monitoring. MCL 769.31(b)(i)–(xv).

Absent a departure from the guidelines, the court may not sentence an *Unless
offender to prison when the offender’s recommended minimum sentence falls otherwise
specified in the
within an intermediate sanction cell. MCL 769.34(4)(a). “An ‘intermediate applicable
sanction’ can mean a number of things, but it does not include a prison statutory
sentence.” Stauffer, supra at 635. However, an offender may be incarcerated provisions. See
in a county jail as part of an intermediate sanction. An offender may be the discussion
of People v
sentenced to a term of incarceration in the county jail as long as the term does Hendrix, below.
not exceed the upper limit indicated in the intermediate sanction cell* or 12
months, whichever is less. MCL 769.34(4)(a). Intermediate sanctions also
include a sentence of five years’ probation for a felony conviction. MCL
769.31(b)(ii); MCL 769.34(4)(d)(ii); MCL 771.2(1).
In Stauffer, the defendant’s PRV and OV levels placed him in a cell with a *The minimum
maximum minimum term of 17 months, and the trial court sentenced the term was
reduced to 16
defendant to a prison term of 17 to 24 months.* Ordinarily, the defendant’s months to
sentence would have been unremarkable because on its face, the sentence was comply with the
“within the guidelines.” Stauffer, supra at 634-635. Pursuant to the plain two-thirds rule.
language of MCL 769.34(4)(a), however, the trial court was required to
impose an intermediate sanction on the defendant because the upper limit of
the range in the defendant’s cell was less than 18 months. Because a prison
term cannot be an intermediate sanction, the trial court’s sentence represented
a departure from the directive contained in MCL 769.34(4)(a), even though
the actual length of the term imposed fell within the face values indicated by
the cell. Stauffer, supra at 636.
See also People v Muttscheler, 481 Mich 372, 373 (2008), where the Supreme
Court affirmed the Court of Appeals’ conclusion that absent a substantial and
compelling reason to depart from the guidelines, a defendant whose
recommended minimum sentence range requires the imposition of an
intermediate sanction may not be sentenced to serve time in prison because an
intermediate sanction does not include a prison sentence. The Supreme Court
noted that People v Stauffer, 465 Mich 633, 636 (2002), “implies that when
the guidelines require an intermediate sanction, even if the length of the
sentence does not exceed the statute’s 12-month maximum, the sentence is an
upward departure if the defendant is required to serve it in prison, rather than
in jail.” Muttscheler, supra at 375.
For a defendant sentenced for violating MCL 257.625(9)(c),* a trial court’s *MCL 257.625
sentence of one year of probation to be served in the county jail was not a (8)(c) at the
time Hendrix
departure under MCL 769.34(2)(a) where the maximum minimum term was decided.
recommended by the guidelines was 11 months. People v Hendrix, 263 Mich
App 18, 22 (2004), modified in part 471 Mich 926 (2004). Hendrix involved
MCL 257.625(9)(c), a statute expressly noted in MCL 769.34(2)(a). Hendrix,
supra at 20. Violations of MCL 257.625(9)(c) are subject to alternate
mandatory minimum sentences under MCL 769.34(2), and the trial court may
sentence a defendant to either alternative. In Hendrix, one sentencing
alternative under MCL 257.625(9)(c) authorized the court to sentence a
defendant to prison for a minimum of one year, and this one-year mandatory
minimum applied only if the defendant was sentenced to prison. Hendrix,
supra at 21.
Section 8.26
The Hendrix case illustrates the operation of MCL 769.34(2)(a). MCL

769.34(2)(a), as applied to the facts in Hendrix, is as follows:
“If the Michigan vehicle code . . . mandates a minimum sentence

for an individual sentenced to the jurisdiction of the department of
corrections [if a defendant is sentenced under the option in MCL
257.625(9)(c)(i), a mandatory minimum of one year applies] and
the Michigan vehicle code . . . authorizes the sentencing judge to
impose a sentence that is less than that minimum sentence [MCL
257.625(9)(c)(ii) authorizes a court to sentence a defendant to
probation and community service with a maximum of one year in
a county jail, a lesser sentence than the one-year minimum in
prison], imposing a sentence that exceeds the recommended
sentence range [in Hendrix, the range was 0 to 11 months] but is
less than the mandatory minimum sentence [one year in prison if
the defendant is sentenced to prison] is not a departure under this
section.” Hendrix, supra at 21-22; MCL 769.34(2)(a).
In addition to the sentence appropriate for an offender whose guidelines

scores place him or her in an intermediate sanction cell, intermediate
sanctions are authorized and sometimes required under other provisions of the
statutory sentencing guidelines. For example, when an offender is convicted
of attempting to commit a class H felony for which a term of more than one
year of imprisonment is authorized, the trial court must impose an
intermediate sanction. MCL 769.34(4)(b). Unless the trial court expresses a
substantial and compelling reason for departure or some other departure
applies, the court may not sentence an offender to prison for conviction of a
class H felony attempt. MCL 769.34(4)(b).
*“Contraband” For example, furnishing a prisoner with contraband* is a class H felony

includes punishable by a maximum of five years of imprisonment. MCL 800.281(1);
alcohol, poison,
prescription
MCL 800.285(1); MCL 777.17g. An offender convicted of attempting to
drugs, and furnish a prisoner with contraband would be convicted of attempting to
other controlled commit a class H felony punishable by more than one year in prison.
substances. According to MCL 769.34(4)(b), the offender must be sentenced to an
intermediate sanction—which may include up to one year in county jail—
unless a departure is appropriate.
B. Straddle Cells
Generally, “straddle cells” are those cells that “straddle” the division between
prison and jail. “Straddle cells” are those cells in which the lower limit of the
recommended range is one year or less and the upper limit of the
recommended range is more than 18 months. MCL 769.34(4)(c); Stauffer,
supra at 636 n 8. “Straddle cells” appear shaded in the sentencing grids
published in existing guidelines manuals and in the grids used in this
monograph, as shown in the example above.

When an offender’s PRV and OV levels result in his or her placement in a *Departure from
“straddle cell,” the sentencing court—absent a departure from the the
recommended
guidelines*—must sentence the offender in one of two ways described in minimum
MCL 769.34(4)(c): sentence is
discussed in
 The court must impose a sentence in which the minimum term of Sections 8.48–
8.51, below.
imprisonment is within the range indicated in the “straddle cell”; that
is, if the court sentences the offender to prison rather than jail, the
minimum term must be within the range of months recommended in
that cell, MCL 769.34(4)(c)(i); or
 The court must sentence the offender to an intermediate sanction,* *Discussed in
which may include a term of imprisonment up to 12 months; that is, subsection (A)
above.
any term of imprisonment imposed under this option will be served by
the offender in the county jail, MCL 769.34(4)(c)(ii).
In People v Martin, 257 Mich App 457 (2003), pursuant to a Cobbs *See Section
agreement,* the defendant pleaded guilty to larceny from a person, MCL 8.32 for more
information.
750.357, based on the trial court’s preliminary sentence evaluation that the
court would sentence him to a term in county jail rather than a term of
imprisonment in the state prison. Martin, supra at 458. The defendant was
sentenced as a second habitual offender, MCL 769.10, to ten months’
imprisonment in the county jail, and the prosecution appealed on the grounds
that the trial court erred as a matter of law by imposing a determinate sentence
on defendant. Martin, supra at 458.
The Martin defendant’s PRV and OV scores placed him in a straddle cell, a
cell in which the upper limit of the recommended sentence is more than 18
months and the lower limit is 12 months or less. MCL 769.34(4)(c).
According to the guidelines, the defendant’s recommended minimum
sentence was 5 to 28 months’ imprisonment. Martin, supra at 459.
MCL 769.8 prohibits determinate sentencing* where the penalty for a felony *Determinate
offense may be imprisonment in a state prison. The Martin Court concluded and
indeterminate
that the Legislature intended an exception to MCL 769.8 with the creation of sentencing are
“intermediate sanctions” for offenses “with a relative lack of severity.” discussed in
Martin, supra at 461. This legislative intent, according to the Martin Court, detail in Section
would be frustrated by application of MCL 769.8 to the situation in Martin: 8.27, below.
“[O]ur Legislature enacted a statutory sentencing scheme that

provides greater uniformity for sentences involving the most
serious offenses and offenders, [and] it also provided trial courts
with greater discretion regarding sentences for offenses and
offenders on the other end of the continuum.” Martin, supra at
461.
MCL 769.31(b)(viii) expressly indicates that “jail” is an appropriate

“intermediate sanction.” Martin, supra at 462.

Section 8.27
The trial court’s imposition of a determinate jail sentence was appropriate in

Martin because the indeterminate sentencing requirement did not apply to the
situation there. Indeterminate sentencing is mandated where a defendant is
sentenced to a “term of years”—but where the trial court opts not to impose a
prison sentence, as in Martin, the guidelines mandated that the defendant be
sentenced to an intermediate sanction for which a jail sentence could not
exceed 12 months. Id. at 462-466 (Murray, J., concurring).
8.27 Indeterminate Sentences
A first-time offender convicted of a felony punishable by imprisonment in a

state prison may not be sentenced to a definite term of imprisonment. Rather,
the court must sentence the defendant to a minimum term and must state the
maximum term of imprisonment for the record. MCL 769.8(1). The
maximum term of imprisonment is the maximum penalty authorized by law
for conviction of the sentencing offense, unless otherwise provided by
Chapter 9 of the Code of Criminal Procedure. Id.
Indeterminate sentencing does not apply to offenses for which the only
punishment prescribed by law is life imprisonment. MCL 769.9(1). Where
mandatory life imprisonment is the penalty for an offense, the sentencing
guidelines do not apply to that offense.
Where the punishment prescribed by law is life or any number of years, the
court may sentence the defendant to life or to a term of years. If the court
sentences the defendant to a term of years, the court must fix a minimum term
and maximum term of years or fractions of years. MCL 769.9(2). The court
may not—in the same sentence—set the maximum sentence at life
imprisonment and set the minimum sentence at a term of years. Id. In other
words, a sentence of “30 years to life” is invalid.
A. The Tanner Rule
The common-law Tanner rule developed in response to sentencing courts that

were imposing “indeterminate” sentences in which the minimum and
maximum terms were separated by only insignificant periods of time. The
Tanner Court ruled that where an indeterminate sentence is imposed, the
minimum sentence must not exceed two-thirds of the maximum sentence. In
other words, any minimum term of imprisonment that exceeded two-thirds of
the maximum term imposed was not an indeterminate sentence. People v
Tanner, 387 Mich 683, 689-690 (1972).
The proper remedy for a violation of the two-thirds rule in MCL 769.34(2)(b)
and People v Tanner, 387 Mich 390 (1994), is a reduction in the minimum
sentence. People v Floyd, 481 Mich 938 (2008), citing People v Thomas, 447
Mich 390 (1994).

The Tanner rule does not apply to convictions for which the penalty is
mandatory life imprisonment or for which the statute provides for imposition
of a mandatory minimum sentence. Id. at 690.
B. The Tanner Rule Extended to Habitual Offenders
Although the indeterminate sentence act on which the two-thirds rule is based
expressly applies to first-time offenders, the Michigan Supreme Court
approved extension of the Tanner rule to the interval between minimum and
maximum sentences in cases involving habitual offenders. MCL 769.8(1);
People v Wright, 432 Mich 84, 93-94 (1989). In Wright, the trial court
sentenced the defendant to a term of 28 to 30 years, and the Court of Appeals
modified the sentence to conform with the two-thirds rule of Tanner, resulting
in a 20- to 30-year term of imprisonment. Wright, supra at 88. The Michigan
Supreme Court affirmed the sentence modification and concluded “that the
Legislature intended to provide a meaningful interval between minimum and
maximum sentences imposed pursuant to [MCL 769.10].” Wright, supra at
89. According to the Wright Court:
“In People v Tanner, the defendant, who had pleaded guilty to

manslaughter, was sentenced to serve fourteen years, eleven
months to fifteen years in prison. The Court addressed itself to the
purely legal question whether the defendant’s sentence was in fact
‘indeterminate,’ as contemplated by the provisions of the
indeterminate sentence act. The Court [in Tanner] stated:
***
“‘Convinced as we are, that a sentence with too

short an interval between minimum and
maximum is not indeterminate, we hold that any
sentence which provides for a minimum
exceeding two-thirds of the maximum is
improper as failing to comply with the
indeterminate sentence act.’” Wright, supra at
89-90, quoting Tanner, supra at 689-690
(citation and footnote omitted).
The Wright Court noted that similar policy considerations existed in the
process of sentencing habitual offenders, and the Legislature incorporated the
policy in amendments to the habitual offender sentencing act by eliminating
determinate sentences. Wright, supra at 90-91; MCL 769.10(2). Before the
1978 amendment to MCL 769.10, the statute required only that a habitual
offender’s sentence bear a specific relationship to the term prescribed for a
first-time offender convicted of the same offense. Wright, supra at 91.
MCL 777.21(3) provides the method of determining a habitual offender’s

sentence with reference to the upper limit of the range recommended by the

Section 8.27
statutory guidelines; the two-thirds rule as codified in MCL 769.34(2)(b)

applies to sentences imposed under MCL 777.21.
C. The Tanner Rule Codified
The Legislature codified the Tanner rule in MCL 769.34(2)(b). The statutory
language provides:
“The court shall not impose a minimum sentence, including a

departure, that exceeds 2/3 of the statutory maximum sentence.”
*The Where life imprisonment or a term of years is the statutory maximum
defendant’s authorized for a conviction, a trial court electing to sentence a defendant to a
sentence for the
third crime—
term of years does not violate the two-thirds ratio of Tanner when the
home invasion minimum sentence exceeds two-thirds of the maximum sentence actually
—is not imposed. People v Powe (Powe II), 469 Mich 1024 (2004). In Powe, the
discussed defendant was convicted of three crimes for which the maximum sentence
because it did
not violate the was life imprisonment or any term of years. In an unpublished opinion, the
two-thirds rule. Michigan Court of Appeals concluded that the trial court had violated the two-
thirds rule of Tanner by imposing sentences of 18 years and 9 months to 25
years for the defendant’s convictions of armed robbery and carjacking.*
People v Powe (Powe I), unpublished opinion per curiam of the Court of
Appeals, decided September 16, 2003 (Docket No. 240584). The Court
vacated the defendant’s sentences and remanded the case to the trial court to
resentence the defendant to an indeterminate term in compliance with Tanner.
Powe I, supra.
In lieu of granting the defendant’s application for leave to appeal, the

Michigan Supreme Court reversed the Court of Appeals and ordered that the
defendant’s sentences be reinstated as they were imposed by the sentencing
court. Powe II, supra. According to the Court:
“A minimum sentence that falls within the properly-scored

sentencing guidelines range must be affirmed. MCL 769.34(10).
MCL 769.34(2)(b) provides that a ‘court shall not impose a
minimum sentence, including a departure, that exceeds 2/3 of the
statutory maximum sentence.’ (Emphasis added.) Since the
statutory maximums for the offenses for which the defendant was
convicted are ‘life or any term of years[,’] the circuit court did not
impose sentences that violated MCL 769.34(2)(b).” Powe II,
supra.
Note: Powe II’s outcome is inconsistent with the Supreme Court’s

disposition of two cases involving similar minimum-maximum
sentence ratios. In People v Irving, 465 Mich 965 (2002), the Court
remanded the case for resentencing because the minimum
sentences imposed exceeded two-thirds of the maximum sentence.
Like Powe II, one of the underlying offenses was punishable by
life imprisonment. Unlike Powe II, however, the Irving Court

concluded that the two-thirds rule remained applicable to the ratio

between the minimum and maximum sentences if a sentence other
than life was imposed. See also People v Reid, 465 Mich 969
(2002). In both cases, the Court instructed the trial court to reduce
the defendants’ minimum sentence so it would comply with
Tanner and the Tanner rule as codified in MCL 769.34(2)(b).
8.28 Concurrent and Consecutive Sentences
Sentences run concurrently unless otherwise indicated; consecutive sentences

may not be imposed unless expressly authorized by law. People v Gonzalez,
256 Mich App 212, 229 (2003). Where consecutive sentencing is authorized,
the statutory language will indicate whether the consecutive nature of the
sentence is mandatory or discretionary. A defendant’s PSIR must contain “[a]
statement prepared by the prosecuting attorney as to whether consecutive
sentencing is required or authorized by law.” MCL 771.14(2)(d). Similarly, a
defendant’s judgment of sentence must specify whether the sentence for
which the defendant is committed to the jurisdiction of the Department of
Corrections (DOC) is to run consecutively to or concurrently with any other
sentence the defendant is, or will be, serving. MCL 769.1h(1). Any party—
the prosecutor, the defendant, or the defense attorney—may file an objection
to the consecutive or concurrent nature of sentences described in the judgment
of sentence. MCL 769.1h(3).
MCL 771.14(2)(e)(i) plainly requires that the sentencing guidelines must be

calculated for each conviction for which consecutive sentencing is required or
authorized. People v Mack, 265 Mich App 122, 127 (2005). Where sentences
will run concurrently, the sentencing guidelines need only be calculated for
the offense with the highest crime class. MCL 771.14(2)(e)(iii); Mack, supra
at 127-128.
For purposes of consecutive sentencing, a “term of imprisonment” includes a

defendant’s jail sentence. People v Spann, 250 Mich App 527, 531-533
(2002), aff’d 469 Mich 898 (2003). In affirming the Court of Appeals, the
Michigan Supreme Court, in Spann, supra at 898, noted that the Court of
Appeals had wrongly stated that the statutory use of the term “imprisonment”
was ambiguous; according to the Supreme Court, the Legislature uses the
term “imprisonment” to refer both to confinement in prison and confinement
in jail. See e.g., MCL 769.28; MCL 35.403; MCL 66.8; MCL 430.55.
For purposes of the Code of Criminal Procedure, misdemeanors punishable *Peremptory

by more than one year (“two-year misdemeanors”) are felonies for purposes order vacating
the Court of
of consecutive sentencing. People v Smith, 423 Mich 427, 434 (1985). Appeals
However, for purposes of the Public Health Code, offenses “expressly decision in
designated” as misdemeanors retain their character as misdemeanors without People v
regard to the length of incarceration possible for conviction of the offense. Wyrick, 265
Mich App 483
People v Wyrick, 474 Mich 947 (2005) (misdemeanor possession of (2005).

Section 8.28
marijuana, second offense, does not constitute a felony for purposes of the
consecutive sentencing provision in MCL 333.7401(3)).*
Offenses specified as misdemeanors in the Penal Code, even if punishable by

more than one year, may not be classified as felonies for purposes of
establishing the underlying felony on which, for example, the crime of felony-
firearm is based. People v Baker, 207 Mich App 224, 225 (1994). See also
People v Williams, 243 Mich App 333, 335 (2000) (resisting arrest is defined
as a misdemeanor under the Penal Code and does not qualify as a felony for
purposes of establishing that the defendant absconded on felony bond).
Unless the Legislature clearly manifests a contrary intent, sentencing

provisions in effect at the time an offense is committed apply to a trial court’s
imposition of sentence, not the amended sentencing provisions that became
effective after the offense was committed but before the defendant was
sentenced. People v Doxey, 263 Mich App 115, 121-123 (2004); People v
Dailey, 469 Mich 1019 (2004). Doxey specifically dealt with 2002 PA 665,
the amendment to the controlled substance sentencing provisions that
eliminated the mandatory nature of sentences under MCL 333.7401(3) and
gave the trial court discretion whether such a sentence was to be concurrent or
consecutive to other sentences.
A. Computation of Sentences
A correctional facility computes the length of an offender’s sentence by

reference to the offender’s judgment of sentence. MCL 791.264(3). Except in
cases where the sentencing offense is for one of the five offenses expressly
listed in MCL 791.264 (discussed below), if a judgment of sentence does not
specify whether a sentence is to run concurrently or consecutively to an
offender’s other sentences, the sentence must be computed as if it is to be
served concurrently. MCL 791.264(3).
Where the conviction is for a violation of MCL 750.193 (breaking prison),

MCL 750.195(2) (breaking jail when jailed for felony), MCL 750.197(2)
(breaking jail while awaiting court proceeding), MCL 750.227b (felony-
firearm), or MCL 750.349a (prison inmate taking a hostage), the sentence
must be computed as consecutive to other sentences unless the judgment of
sentence indicates that the sentence shall run concurrently with an offender’s
other sentences. MCL 791.264(4).
If an offender’s judgment of sentence fails to specify whether the sentence is

to be served concurrently with or consecutively to the offender’s other
sentences, or if the judgment of sentence indicates that the sentence was to be
served concurrently with other sentences and the sentencing offense was one
of the five mandatory consecutive sentences enumerated in MCL 791.264, the
Department of Corrections must notify the sentencing judge, the prosecuting
attorney, and the affected prisoner not more than seven days after the sentence
is computed. MCL 791.264(5).

B. Mandatory Consecutive Sentences
Felony or misdemeanor punishable by imprisonment committed while

the offender was incarcerated or had escaped. Consecutive sentencing is
mandatory when a defendant is convicted of committing a crime punishable
by imprisonment when the offense was committed while the defendant was
incarcerated in, or had escaped from, a penal institution. MCL 768.7a(1). The
unambiguous language of MCL 768.7a(1) indicates that the consecutive
sentencing mandated by the statute applies only to offenders who commit a
crime while incarcerated in a penal institution in Michigan, or while on escape
from a penal institution in Michigan. People v Alexander, 234 Mich App 665,
676-677 (1999) (consecutive sentencing did not apply to the defendant’s
sentence for commission of a crime in Michigan while on escape from a
Louisiana prison). A defendant in the custody of a halfway house is in a penal
institution for purposes of the consecutive sentencing mandate. People v
Jennings, 121 Mich App 318, 319 (1982). Mandatory consecutive sentencing
also applies to sentences imposed for crimes committed by an offender during
his or her incarceration in a federal penal or reformatory institution located in
Michigan. People v Kirkland, 172 Mich App 735, 737 (1988).
The consecutive sentencing mandate of MCL 768.7a(1) applies when an

offender commits a misdemeanor offense “punishable by imprisonment”
while incarcerated in or on escape from a penal institution in Michigan.
People v Weatherford, 193 Mich App 115, 118-119 (1992). Any sentence
imposed for the offender’s misdemeanor conviction must be served in the
custody of the Department of Corrections and consecutively to the term of
imprisonment the offender was serving at the time of offense. Id.
Felony offense committed when the offender was on parole. A person

convicted and sentenced for a felony committed while the person was on
parole from a sentence for a previous offense is subject to a mandatory
consecutive sentence for the subsequent offense. The term for the subsequent
offense “shall begin to run at the expiration of the remaining portion of the
term imposed for the previous offense.” MCL 768.7a(2).
“[T]he ‘remaining portion’ clause of [MCL 768.]7a(2) requires the

offender to serve at least the combined minimums of his sentences,
plus whatever portion, between the minimum and the maximum,
of the earlier sentence that the Parole Board may, because the
parolee violated the terms of parole, require him to serve.” Wayne
County Pros v Dep’t of Corrections, 451 Mich 569, 584 (1996).
The consecutive sentencing mandate may result in “stacked” sentences

involving more than one consecutive sentence. In People v Piper, 181 Mich
App 583 (1989), the defendant escaped from prison where he was serving a
life sentence that was imposed in 1966. The defendant committed several
felony offenses while he was on escape in 1983, 1984, and 1985. The
defendant was convicted of the offenses that occurred during his escape and
sentences for these convictions were imposed in 1986. Pursuant to MCL
Section 8.28
768.7a(1), the sentences were made consecutive to the defendant’s 1966 life
sentence. Piper, supra at 584-585. In 1988 the defendant pleaded guilty to
second-degree murder, an offense he committed while an escapee, and the
sentence imposed on the defendant for murder was made consecutive to the
terms of imprisonment already imposed on him in 1966 and 1986. Id. at 584.
That the defendant’s sentence was made consecutive to a term of
imprisonment already consecutive to a prior term did not result in
impermissible stacking. Id. at 585-586.
Major controlled substance offense when a previous felony offense is

pending disposition. If a defendant commits a major controlled substance
offense while the disposition of another felony offense is pending,
consecutive sentencing is mandatory. MCL 768.7b(2)(b). A felony is
“pending disposition” for purposes of consecutive sentencing “if the second
offense is committed at a time when a warrant has been issued in the original
offense and the defendant has notice that the authorities are seeking him with
regard to that specific criminal episode.” People v Waterman, 140 Mich App
652, 655 (1985) (the defendant left Michigan after he was told that the police
were looking for him and a warrant had issued by the time of his arrest for the
subsequent offense). See also People v Henry, 107 Mich App 632, 637 (1981)
(a felony charge was not pending where although a warrant had been issued
for the defendant’s first offense, the defendant was unaware that his conduct
was the subject of a criminal prosecution).
“Pending disposition” includes the entire period of time up to the date of

sentencing for the pending offense. People v Morris, 450 Mich 316, 330-331
(1995). A felony charge is no longer pending if probation is imposed
following conviction of the charge. People v Malone, 177 Mich App 393,
401-402 (1989); People v Leal, 71 Mich App 319, 321 (1976).
Other statutes that mandate consecutive sentencing. MCL 750.193(1)

mandates consecutive sentencing for defendants convicted of escape or
attempting to escape confinement. A person who violates the terms of his or
her parole is not an escapee for purposes of this statute. MCL 750.193(3).
Consecutive sentencing is mandatory when a felony offender escapes or

attempts to escape from jail before or after court proceedings related to a
felony charge. MCL 750.197(2). Consecutive sentencing is required when a
prisoner takes a hostage. MCL 750.349a. MCL 750.195(2) mandates
consecutive sentencing when an offender who is in jail on a felony offense
escapes or attempts to escape from jail.
The consecutive sentencing required for felony-firearm offenses, MCL

750.227b, is discussed in subsection (D), below.

C. Discretionary Consecutive Sentences
Controlled substance offenses. Effective March 1, 2003, 2002 PA 665 *See Section
eliminated mandatory consecutive sentencing for offenses under MCL 8.16 for a
description of
333.7401(3) and made it discretionary. Gonzalez, supra at 229-230; Morris, these offenses.
supra at 320. A sentence imposed for a controlled substance offense under
MCL 333.7401(2)(a)* may be made consecutive to any sentence imposed for
the commission of any other felony. MCL 333.7401(3).
For the following offenses, consecutive sentencing is discretionary for

violations “arising out of the same transaction as the sentencing offense.”
• MCL 333.7401c, possession of equipment or buildings for the

purpose of manufacturing controlled substances in violation of
MCL 333.7401 or counterfeit controlled substances in violation of
MCL 333.7402. MCL 333.7401c(5).
• MCL 750.81d, assaulting or obstructing a law enforcement

officer, firefighter, or emergency medical personnel when the
offender should know that the individual is performing his or her
duties. MCL 750.81d(6).
• MCL 750.110a(2), first-degree home invasion. MCL 750.110a(8).
• MCL 750.479, obstructing or endangering authorized process

servers or officers enforcing township ordinances. MCL
750.479(7).
• MCL 750.479b, taking a firearm or other weapon from a peace

officer or corrections officer. MCL 750.479b(4).
• MCL 750.529a, carjacking. MCL 750.529a(3).
• MCL 769.36, permitting multiple charges against an offender for

each death that results from violating any of the statutes listed.
MCL 769.36(1).
• MCL 750.520b(2)(a) and (b), first-degree criminal sexual conduct

involving an offender aged 17 or older and a victim under the age
of 13. MCL 750.520b(3).
• MCL 750.520n(2), violations involving equipment used for

certain offenders subject to lifetime electronic monitoring.* MCL
750.520n(4).
Note: Lifetime electronic monitoring, MCL 791.285, was

established by 2006 PA 172, effective August 28, 2006.
Pursuant to MCL 791.285(3), “‘electronic monitoring’
means a device by which, through global positioning
system satellite or other means, an individual’s movement
and location are tracked and recorded.”

Section 8.28
For the following offenses, a sentence may be consecutive to a sentence

imposed for any other crime, including crimes “arising out of the same
transaction” as the sentencing offense.
• MCL 750.50, various violations involving the proper care and

treatment of animals. MCL 750.50(7).
• MCL 750.119, corruption with the intent to bias the opinion or

influence the outcome of any matter pending before the court or
other decision-maker. MCL 750.119(3).
• MCL 750.120a(2) and (4), willfully attempting to influence a juror

by intimidation, or retaliating or threatening to retaliate against a
juror for performing his or her duties. MCL 750.120a(6).
• MCL 750.122, giving or offering anything of value to encourage,

discourage, or influence a witness, or retaliating against a person
for having been a witness. MCL 750.122(11).
• MCL 750.483a, withholding information ordered by the court or

retaliating against an individual for reporting a crime. MCL
750.483a(10).
An offender’s sentence for the following offenses may be made

consecutive to a sentence imposed for an underlying misdemeanor or
felony offense.
• MCL 750.145d, using the internet or a computer to engage in

prohibited conduct. MCL 750.145d(3).
• MCL 750.212a, criminal conduct committed in or directed at a
vulnerable target. MCL 750.212a(1).
• MCL 750.227f, committing or attempting to commit a violent act

against a person while wearing body armor. MCL 750.227f(1).
• MCL 752.797, using a computer or computer network to commit

a crime, to conspire to commit a crime, or to solicit another person
to commit a crime. MCL 752.797(4).
Pending felonies. With the exception of major controlled substance offenses,

MCL 768.7b(2)(a) authorizes consecutive sentencing for an offense
committed pending disposition of a prior felony charge. The discretionary
authority to impose consecutive sentences applies only to the “last in time”
sentencing court. People v Chambers, 430 Mich 217, 230-231 (1988).
Medicaid fraud. A trial court may impose consecutive sentences for an

offender’s “conviction of separate offenses under [the Medicaid False Claim
Act].” Violation of MCL 400.609, fourth offense, is subject to the sentencing
guidelines (MCL 777.14a) and is punishable by not more than ten years of
imprisonment.

Identity theft. A sentence imposed for a violation of MCL 445.65 or MCL

445.67 (identity theft) may be made to run consecutively to any term of
imprisonment imposed for another violation committed during a defendant’s
violation or attempted violation of MCL 445.65 or MCL 445.67, or for
another violation occurring after the initial violation using information
obtained as a result of the initial violation. MCL 445.69(4).
False statement in petition for post conviction DNA testing. A sentence

imposed for a violation of MCL 750.422a (when a defendant intentionally
makes a material false statement when petitioning for DNA testing of
biological material identified during the investigation leading to the
defendant’s conviction) may be made consecutive to any term of
imprisonment the defendant is serving. MCL 750.422a(2).
Gang-related crimes. A sentence imposed for a violation of MCL 750.411u

(gang member/associate guilty of a felony if he or she commits or attempts to
commit a felony and his or her relationship with the gang provides the motive,
means, or opportunity to commit the felony) is in addition to, and may be
made to run consecutively with, and preceding, any term of imprisonment
imposed for the conviction of the underlying felony or attempt to commit the
underlying felony. MCL 750.411u(2).
A sentence imposed for a violation of MCL 750.411v (causing, encouraging,

recruiting, soliciting, coercing another to join, participate in, or assist a gang
in committing a felony) is in addition to a sentence imposed for the conviction
of another felony or attempted felony arising out of the same transaction, and
may be ordered to be served consecutively with, and preceding, a term of
imprisonment imposed for the conviction of that felony or attempted felony.
MCL 750.411v(4).
D. Felony-Firearm Convictions
The sentence imposed for a felony-firearm conviction must be consecutive to

the sentence imposed for the felony or attempted felony on which the felony-
firearm conviction is based. MCL 750.227b(2). A sentence for felony-firearm
is a determinate number of years depending on the number of the defendant’s
previous felony-firearm convictions. MCL 750.227b(1).
A felony-firearm conviction requires that the defendant “carr[y] or ha[ve] in

his or her possession a firearm when he or she commits or attempts to commit
a felony[.]” MCL 750.227b(1). This provision lists four weapons offenses on
which a felony-firearm conviction cannot be based:
• unlicensed sale of firearms and sales to convicted felons and

minors, MCL 750.223;
• carrying a concealed weapon (CCW), MCL 750.227;

Section 8.29
• carrying a licensed pistol beyond the scope of the license, MCL

750.227a; and
• alteration, removal, or obliteration of a firearm’s identification

mark, MCL 750.230.
With the exception of the four offenses listed above, a felony-firearm sentence
is to be consecutive only to the sentence imposed for the felony on which the
felony-firearm conviction is based. MCL 750.227b(2); People v Clark, 463
Mich 459, 463-464 (2000). If a felony-firearm conviction is based on a
qualifying underlying felony (i.e., not MCL 750.223, .227, .227a, or .230), the
defendant may also be convicted of any of the four offenses but the sentence
imposed for the conviction must be concurrent to the felony-firearm sentence.
People v Cortez, 206 Mich App 204, 207 (1994).
The consecutive sentencing requirement applies only when the penalty

imposed for the underlying felony is a term of imprisonment. People v Brown,
220 Mich App 680, 682-683 (1996). If the court imposes a sentence of
probation for the felony offense underlying an offender’s felony-firearm
conviction, the mandatory two-year sentence must run concurrently with the
term of probation. Id. at 682-684.
8.29 Principle of Proportionality
“The premise of our system of criminal justice is that, everything else being
equal, the more egregious the offense, and the more recidivist the criminal, the
greater the punishment.” People v Babcock, 469 Mich 247, 263 (2003).
A. Judicial Sentencing Guidelines
Under the judicial guidelines sentences were regularly reviewed for

proportionality under People v Milbourn, 435 Mich 630 (1990). A sentence is
proportionate when it reflects the seriousness of the circumstances
surrounding the offense and the offender’s criminal history. Id. at 635-636;
People v Crawford, 232 Mich App 608, 621 (1998). Sentences imposed
within the range recommended by a defendant’s properly scored judicial
guidelines were presumptively proportionate; that is, a sentence within the
guidelines was neither excessively severe nor unfairly lenient. People v
Wybrecht, 222 Mich App 160, 175 (1997); People v Kennebrew, 220 Mich
App 601, 609 (1996). A sentence imposed within the range indicated by the
judicial guidelines could violate the principle of proportionality only in
unusual circumstances. Milbourn, supra at 661; People v Hadley, 199 Mich
App 96, 105 (1993).
Note: Although the judicial guidelines did not apply to habitual

offender sentences, those sentences were subject to the principle of
proportionality. People v Coy, 258 Mich App 1, 23 (2003); People
v McFall, 224 Mich App 403, 415-416 (1997).
The proportionality of a defendant’s sentence is considered by reference to the

sentences in the abstract; that is, where a defendant is sentenced to multiple
consecutive terms of imprisonment, the proportionality of the sentence is not
determined by the cumulative effect of the defendant’s sentences. People v
Miles, 454 Mich 90, 94-95 (1997); Kennebrew, supra at 609.
A trial court is not required to consider a codefendant’s sentence when

imposing sentence on another codefendant; that is, each individual convicted
of a crime, when more than one individual participated in the same crime, is
not entitled to receive a sentence similar to the sentences received by other
participants. People v Colon (After Remand), 250 Mich App 59, 64 (2002).
B. Statutory Sentencing Guidelines
The concept of proportionality is somewhat different under the statutory

sentencing guidelines. An offender’s OV and PRV levels, as determined by
reference to the offense and the offender, are intended to place the offender in
a cell on the appropriate sentencing grid that recommends a minimum
sentence proportionate to that offense and offender.
“Under the guidelines, offense and prior record variables are

scored to determine the appropriate sentence range. Offense
variables take into account the severity of the criminal offense,
while prior record variables take into account the offender’s
criminal history. Therefore, the appropriate sentence range is
determined by reference to the principle of proportionality; it is a
function of the seriousness of the crime and of the defendant’s
criminal history.” Babcock, supra at 263-264.
Unless a trial court relied on inaccurate information or on guidelines that were *See Sections
erroneously scored, a sentence within the appropriate guidelines range is 8.48–8.51 for
more
presumptively proportionate and must be affirmed on appeal. Id. at 261, 263- information on
264. A sentence imposed under the statutory guidelines is reviewed for its departures.
proportionality only if it represents a departure* from the range recommended
under the guidelines. Id. at 262.
The fact that a sentence is made consecutive to the remaining portion of a

parole-related sentence does not overcome the presumptive proportionality of
a sentence within the guidelines range. People v Powell, 278 Mich App 318,
324 (2008).
C. When No Guidelines Apply to the Sentencing Offense
In cases where the statutory guidelines were not applicable to an offense at the
time it was committed but were made applicable before sentencing, a
sentencing court is authorized to impose any sentence proportionate to the
circumstances of the offender and the offense and within the statutory
maximum set by the Legislature. People v Calabrese, unpublished opinion

Section 8.30
per curiam of the Court of Appeals, decided June 17, 2004 (Docket No.
246795).
In Calabrese, the defendant was convicted of driving with a suspended license

and causing death, MCL 257.904(4). The statutory sentencing guidelines
were applicable to this offense at the time of the defendant’s sentencing but
the guidelines were not yet applicable to the offense at the time it was
committed. The Calabrese Court concluded that it would be improper to
apply to the instant offense the sentencing guidelines for a similar crime
because those guidelines were in effect at the time the defendant was
sentenced. The Court concluded that where no guidelines apply to a felony
offense, the sentencing court should be guided by the sound decisions reached
in Milbourn, supra at 636 (principle of proportionality); People v Tanner, 387
Mich 683, 690 (1972) (minimum sentence must not exceed two-thirds of the
maximum sentence); and People v Shipley, 256 Mich App 367, 378 (2003) (a
sentence in excess of statutory limits is invalid). Calabrese, supra.
8.30 Additional Information to Consider Before Imposing

Sentence
Before the statutory sentencing guidelines were established, the Supreme

Court refused to rigidly define or classify the facts and circumstances
surrounding the offense and the offender into facts and circumstances either
properly or improperly considered in fashioning a defendant’s sentence.
People v Adams, 430 Mich 679, 687 (1988). According to the Adams Court:
“It remains the role of the sentencing judge to weigh facts deemed
relevant to the sentencing decision. Our function is to identify
those factors which when injected into the sentencing process
tread unfairly upon the defendant’s rights.” Id (internal citation
omitted).
A. Proper Considerations
In People v Oliver, 242 Mich App 92, 98 (2000), the Court of Appeals stated
that factors proper for consideration by a sentencing court when fashioning a
defendant’s sentence include:
• the severity and nature of the crime committed;
• the circumstances surrounding the criminal conduct;
• the defendant’s attitude toward his or her criminal behavior;
• the defendant’s social and personal history; and
• the defendant’s criminal history, including subsequent offenses.

Perjury may be considered under specific circumstances; a defendant’s false

testimony does not vest the court with uncontrolled discretion in imposing the
defendant’s sentence. A trial court must not give improper weight to this
factor or ignore evidence that the defendant’s testimony was not wilful or
flagrant. Adams, supra at 693. Perjury is properly considered by a sentencing
court in fashioning a defendant’s sentence
“when the record contains a rational basis for the trial court’s
conclusion that the defendant’s testimony amounted to wilful,
material, and flagrant perjury, and that such misstatements have a
logical bearing on the question of the defendant’s prospects for
rehabilitation . . . .” Id. at 693.
A defendant’s post-arrest conduct* was properly considered by the court *Under the
when imposing sentence where the judicial guidelines in effect at the time did statutory
guidelines, PRV
not account for a defendant’s misconduct while in custody. People v Houston, 7 accounts for
448 Mich 312, 318 (1995). “[J]ust as an exemplary custodial record might be any subsequent
found to be a mitigating circumstance, misconduct in custody may be an offenses
aggravating circumstance indicating a disposition to violence or committed by a
defendant, not a
impulsiveness.” Id. at 323. defendant’s
conduct while
Evidence of a defendant’s lack of remorse may be properly considered in incarcerated.
determining the defendant’s potential for rehabilitation. People v Spanke, 254
Mich App 642, 650 (2003).
The effect a crime has had on a victim is an appropriate consideration in

fashioning a defendant’s sentence. People v Compagnari, 233 Mich App 233,
236 (1998).
A sentencing court may not arbitrarily lengthen an offender’s prison sentence

for the expressed purpose of incarcerating the offender “beyond the age of
violence.” People v Fisher, 176 Mich App 316, 318 (1989), aff’d in part, rev’d
in part 442 Mich 560 (1993). A sentencing court may properly consider a
defendant’s age in light of other permissible and relevant factors—criminal
history and admitted drug use, for example—to determine the defendant’s
potential for rehabilitation. People v Randolph, 242 Mich App 417, 423
(2000), aff’d in part, rev’d in part 466 Mich 532 (2002). However, it is
inappropriate to consider a defendant’s age in assessing the risk of recidivism
where no evidence was presented to support the court’s opinion of the
defendant’s probable recidivism. People v McKernan, 185 Mich App 780,
781-783 (1990). According to the McKernan Court:
“The theory that the advanced age of a defendant increases the

probability of recidivism and justifies a longer sentence than
would be given to a younger person (even within the [judicial]
guidelines) is sufficiently complex and controversial to require
scientific justification before it may be relied on by a court.” Id. at
783.

Section 8.30
A sentencing court may consider an adult defendant’s juvenile records when

imposing sentence, even when the juvenile records have been automatically
expunged. People v Smith, 437 Mich 293, 301-303 (1991). In deciding that a
defendant’s juvenile court history may be used at sentencing, the Michigan
Supreme Court amended the court rules to require that defendants receive a
copy of their PSIRs before sentencing; the amendment was intended to
provide a defendant with sufficient notice of the juvenile history contained in
his or her PSIR so that the defendant would have an opportunity to refute the
information at sentencing. People v McFarlin, 389 Mich 557, 575-576 (1973).
As long as the information is accurate and the defendant has an opportunity to

refute it, a court may consider a defendant’s alleged criminal conduct even
when the conduct does not result in conviction. People v Wiggins, 151 Mich
App 622, 625 (1986). A sentencing court may also consider a defendant’s
conduct in charges dismissed as a result of a plea agreement:
“The fact that defendant was properly charged in [the dismissed

case], had been brought before the trial court on the matter, had not
denied the accuracy of the charges themselves, and would have
had to answer for these charges except for the agreement between
the parties, provides an accurate and adequate basis upon which
the judge could consider evidence of that criminal conduct[.]”
People v Moore, 70 Mich App 210, 213 (1976).
*See Sections The statutory sentencing guidelines have quantified many of the historical
8.5 and 8.6 for considerations discussed above. For example, the seven prior record variables
detailed
information on
(PRVs)* account for the extent and severity of a defendant’s criminal history
scoring a by assigning point values to a defendant’s previous high and low severity
defendant’s felony convictions (PRVs 1 and 2), a defendant’s previous high and low
PRVs and OVs. severity juvenile adjudications (PRVs 3 and 4), a defendant’s prior
misdemeanor convictions or prior misdemeanor juvenile adjudications (PRV
5), a defendant’s relationship to the criminal justice system at the time he or
she is sentenced for the scored offense (PRV 6), and the number of concurrent
or subsequent felony convictions accumulated by the defendant at the time of
sentencing for the scored offense (PRV 7). Similarly, the offense variables
(OVs) account for the circumstances surrounding the defendant’s commission
of the sentencing offense. For example, OVs 1 and 2 assign points for the
defendant’s use of a weapon during the offense.
B. Improper Considerations
It is improper to consider the following factors when fashioning an offender’s

sentence:
 A defendant’s refusal to provide authorities with information about

other criminal conduct. People v Peques, 104 Mich App 45, 46 (1981),
aff’d 412 Mich 851 (1981).

 Good-time credits, disciplinary credits, or the effect of prison

overcrowding. People v Fleming, 428 Mich 408, 428 (1987).
 A defendant’s assertion of innocence. People v Wesley, 428 Mich 708,
718-719 (1987).
Resentencing is required when a sentencing court indicates that

the sentencing process “might go a whole lot easier” if the
defendant produced the weapon involved in the offense when,
although the jury convicted the defendant of felony-firearm, the
defendant maintained his innocence of the weapons charge.
People v Conley, 270 Mich App 301, 313-315 (2006).
In Conley, supra at 314-315, the defendant admitted to much of

the conduct involved in his convictions for first-degree home
invasion and felonious assault but he consistently denied that he
possessed a weapon at the time of the offenses. At the defendant’s
sentencing hearing the trial court invited the defendant to further
incriminate himself:
“The trial court did not expressly state that if [the

defendant] revealed the location of the gun he
would receive a lesser sentence. However, the offer
of such a quid pro quo clearly existed. The trial
court stated, ‘[the defendant] may wish to appeal
the conviction, but it might go a whole lot easier if
we had the weapon that was discussed in this
matter.’ Clearly, the implication from this was that
[the defendant] would have been sentenced more
leniently if he informed the trial court of the gun’s
location and thereby effectively admitted his guilt.”
Id. at 315.
See also People v Dobek, 274 Mich App 58 (2007), where the Court quoted
the three factors used by the Court in People v Wesley, 428 Mich 708 (1987),
to determine whether a trial court’s sentence was influenced by a defendant’s
failure to admit guilt. According to the Dobek Court:
“To determine whether sentencing was improperly influenced by

the defendant’s failure to admit guilt, this Court focuses on three
factors: ‘(1) the defendant’s maintenance of innocence after
conviction; (2) the judge’s attempt to get the defendant to admit
guilt; and (3) the appearance that had the defendant affirmatively
admitted guilt, his sentence would not have been so severe.’”
Dobek, supra at 104, quoting Wesley, supra at 713.
 An independent finding of guilt with regard to other offenses with

which a defendant is charged. People v Grimmett, 388 Mich 590, 608
(1972).

Section 8.30
But see People v Granderson, 212 Mich App 673, 679

(1995) (a trial court may properly consider facts
underlying a defendant’s previous acquittal of other
charges), and People v Shavers, 448 Mich 389, 393 (1995)
(it is not an independent finding of guilt when a court
considers evidence presented at trial as an aggravating
factor to determine the appropriate sentence).

omitted).
 A defendant’s last-minute plea or waiver of the right to a jury trial.

People v Earegood, 383 Mich 82, 85 (1976).
 A defendant’s exercise of his or her constitutional right to trial by jury
or a defendant’s waiver of a jury trial. People v Godbold, 230 Mich
App 508, 517-520 (1998).
 A defendant’s polygraph results. Adams, supra at 687 n 6; People v
Towns, 69 Mich App 475, 479 (1976). See also People v Anderson,
284 Mich App 11, 16 (2009) (“generally, a court may neither solicit
nor consider polygraph-examination results for sentencing, People v
Towns, 69 Mich App 475, 478 (1976), and the consideration of
polygraph-examination results is generally considered error that
requires resentencing, People v Allen, 49 Mich App 148, 151-152
(1973) [parallel citations omitted]”).

 A defendant’s eligibility for parole. People v Wybrecht, 222 Mich App

160, 173 (1997).
 The possibility that a defendant may be granted early release or
community placement. People v Miller, 206 Mich App 638, 642
(1994); People v McCracken, 172 Mich App 94, 101-103 (1988).
 Local sentencing policy, to the extent that it prevents an individualized
sentence tailored to the circumstances of the offense and the offender.
People v Chapa, 407 Mich 309, 311 (1979); People v Catanzarite, 211
Mich App 573, 583-584 (1995).
 The length of any consecutive or concurrent sentences to which the
defendant may also be subject. People v Miles, 454 Mich 90, 95, 101
(1997).
8.31 Sentence Credit
A defendant is entitled to credit for presentence time served on the offense for
which he or she was convicted and is being sentenced if the presentence
incarceration was due to the denial of bond or the defendant’s inability to
furnish bond. MCL 769.11b; People v Preiskorn, 424 Mich 327, 334, 344
(1985). Credit for time served must be time a defendant spent incarcerated for
the sentencing offense against which the credit is awarded; a defendant cannot
receive credit for time served for an offense unrelated to the sentencing
offense. People v Heim, 206 Mich App 439, 442 (1994).
When a defendant is entitled to credit for time served, the trial court must
grant the credit at the defendant’s sentencing. MCL 769.11b, the sentencing
credit statute, provides:
“Whenever any person is hereafter convicted of any crime within

this state and has served any time in jail prior to sentencing
because of being denied or unable to furnish bond for the offense
of which he is convicted, the trial court in imposing sentence shall
specifically grant credit against the sentence for such time served
in jail prior to sentencing.”
“A defendant is entitled to credit for time served before sentencing [under

MCL 769.11b] even if the defendant is sentenced to serve a mandatory term
of life imprisonment without parole.” People v Seals, 285 Mich App 1, 18-19
(2009).
Presentence incarceration must be for sentencing offense. When a

defendant is serving time on a sentence and a subsequent offense is
adjudicated during the incarceration, the defendant is not entitled to credit
against the second offense for time served before sentencing because he or she
was incarcerated and serving time on an unrelated offense. People v Givans,

Section 8.31
227 Mich App 113, 125 (1997); People v Alexander (After Remand), 207
Mich App 227, 229 (1994).
Similarly, a defendant is not entitled to credit for time served against a

sentence that must run consecutively to a sentence the defendant was serving
at the time of the subsequent offense. People v Connor, 209 Mich App 419,
431 (1995). Time spent incarcerated while awaiting disposition of the
subsequent offense is “presentence time served that [the defendant] was
already obliged to serve under a prior sentence.” Id.
A defendant is not entitled to credit against a sentence imposed for a crime

committed while the defendant was on parole; time served in jail before being
sentenced for the subsequent offense is properly credited against the
unexpired portion of the sentence for the offense for which the defendant was
paroled. MCL 791.238(2); People v Stewart, 203 Mich App 432, 433 (1994).
See also People v Stead, 270 Mich App 550, 551-552 (2006). A defendant
who spends time in jail for an offense committed while the defendant was on
parole is a parole detainee for whom bond is not considered. A parole detainee
is entitled to credit against the sentence from which he or she was paroled for
any time spent in jail awaiting disposition of the new offense.
Presentence incarceration must be due to denial or inability to furnish

bond. A defendant is not entitled to credit for time spent in boot camp when
the defendant’s participation in the program was not due to his being denied
bond or being unable to furnish bond. People v Wagner, 193 Mich App 679,
682 (1992) (the defendant was sentenced after he failed to complete a boot
camp program originally imposed in lieu of prison; he was not entitled to
sentence credit for that time because it did not result from a denial or inability
to post bond).
When a defendant’s participation in a tether program did not result from a

denial of bond or an inability to post bond, the time spent in the program does
not qualify for credit under MCL 769.11b. People v Reynolds, 195 Mich App
182, 183 (1992).
The sentencing credit statute does not entitle a defendant to sentence credit for
time spent in a drug rehabilitation program, even when participation in the
program was a condition of probation, unless the defendant’s placement in the
program was due to his or her inability to furnish bond. People v Whiteside,
437 Mich 188, 196 (1991).
MCL 769.11b does not authorize credit for time served at a treatment or
rehabilitation center where the trial court delayed the defendant’s sentencing
“to give [the defendant] the opportunity to prove to the court his eligibility for
probation or other leniency compatible with his rehabilitation.” People v
Scott, 216 Mich App 196, 200 (1996).

Where a defendant’s placement in a treatment or rehabilitation facility is not

the equivalent of serving time “in jail” and was not occasioned by the court’s
denial of bond or the defendant’s inability to post bond, MCL 769.11b does
not apply. Scott, supra at 199.
“When a defendant is incarcerated in another jurisdiction, ‘whether a hold

has, or could have, entered against the defendant is irrelevant for purposes of
determining how much time the defendant has served “for the offense of
which he [or she] is convicted.”’” People v Patton, 285 Mich App 229, 238-
239 (2009), quoting People v Adkins, 433 Mich 732, 748 (1989), quoting
MCL 769.11b. In Patton, supra at 230-231, a criminal complaint was filed,
and a warrant was issued for the defendant’s arrest, in October 2002.
However, it was not until February 2006 that the prosecution learned that the
defendant was incarcerated in a federal penitentiary and entered a detainer
against him. Id. at 231. The defendant was not informed of the detainer until
August 2006, at which time he requested a final disposition of the Michigan
charge. Id. He was transferred to Michigan in November 2006, and pleaded
no contest to the Michigan charge. Id. The defendant argued that he was
entitled to credit for time served from the date a detainer could have been
entered against him in October 2002, or at the very least, from the time the
detainer was actually entered in February 2006. Id. at 238. However, the
defendant’s incarceration in the federal penitentiary before November 2006
was not the result of his being denied or unable to furnish bond for the
Michigan charge; therefore, he was “not entitled to sentence credit for time
served from the date a detainer could have, or was, lodged against him.” Id. at
239. The defendant was entitled to sentence credit for time served from
November 2006, when he was transferred to Michigan, until he was
sentenced. Id.
A defendant is not entitled to credit for time served against his or her
Michigan sentence when the defendant is held as a parole detainee from a
foreign jurisdiction. People v Seiders, 262 Mich App 702, 705 (2004). The
plain language of MCL 769.11b dictates the outcome in such cases:
“MCL 769.11b does not . . . entitle a defendant to credit for time

served prior to sentencing if he is incarcerated for an offense other
than that for which he is ultimately convicted, or for other,
unrelated reasons. . . . [B]ond is neither set nor denied when a
defendant is held in jail on a parole detainer. Apparently, the
Johnson Court did not consider the fact that the defendant was
incarcerated due to a parole detainer. Because defendant was held
on a parole detainer, the question of bond is not an issue, and MCL
769.11b does not apply [internal citations omitted].” Seiders,
supra at 706-707.
Seiders, supra, resolved the question of sentence credit against a defendant’s

Michigan sentence when the defendant is sentenced for a crime committed in
Michigan while he or she was on parole from a foreign jurisdiction. “Given
the clear and unambiguous language of the relevant statutory provisions, the

Section 8.31
Seiders [] Court’s holding . . . was not unexpected or indefensible[;]”

therefore, the Seiders rule is fully retroactive. People v Meshell, 265 Mich
App 616, 640-641 (2005).
See also People v Stead, 270 Mich App 550, 551-552 (2006) (because bond
is not considered for a parole detainee, time served is not creditable to current
offense).
*People v See also People v Filip, 278 Mich App 635, 641 (2008), where the trial court
Seiders, 262 erred in granting credit against a defendant’s sentencing offense for the time
Mich App 702
(2004).
the defendant served in jail on a parole detainer because a parole violator “is
not serving time in jail because of an inability to pay or denial of bond on the
new charge; rather, he is serving time in jail because he is being held on a
parole detainer. . . . [A]ccording to Seiders,* the question of bond is not an
issue, and MCL 769.11b does not apply.” The Court further explained:
“MCL 791.238(1) provides that a parolee remains legally in the

custody of the Department of Corrections, and that ‘[p]ending a
hearing upon any charge of parole violation, the prisoner shall
remain incarcerated.’ This provision unambiguously declares that
parole violators cannot avoid confinement pending resolution of
the violation proceedings. Such a period of incarceration thus
constitutes part of the original sentence and in that sense is
credited against it. Moreover, ‘denied,’ as used in MCL 769.11b,
implies the exercise of discretion, not the recognition of outright
ineligibility. For that reason, MCL 769.11b simply does not apply
to parole detainees.” Filip, supra at 641-642.
*Sentences See also People v Idziak, 484 Mich 549, 562 (2009), where the Supreme Court
involving SAI “reach[ed] essentially the same conclusion as the Court of Appeals did in
units are
discussed in
[People v] Seiders[, 262 Mich App 702 (2004),] and [People v] Filip[, 278
detail in Section Mich App 635 (2008)]—that the jail credit statute does not generally apply to
8.47, below. parolees who commit new felonies while on parole—[but] on the basis of a
somewhat different analysis.” The Idziak Court held that “the jail credit
statute does not apply to a parolee who is convicted and sentenced to a new
term of imprisonment for a felony committed while on parole because, once
arrested in connection with the new felony, the parolee continues to serve out
any unexpired portion of his [or her] earlier sentence unless and until
discharged by the Parole Board. For that reason, he [or she] remains
incarcerated regardless of whether he [or she] would otherwise be eligible for
bond before conviction on the new offense.” Idziak, supra at 562. Because the
parolee is not being incarcerated due to being denied or unable to furnish bond
for the new offense, the jail credit statute, MCL 769.11b, does not apply.
Idziak, supra at 562-563.
Refuting the popular argument of recidivist parolees that time spent awaiting
sentence on a new conviction is “dead time,” the Court of Appeals explained
in People v Robert Johnson, 283 Mich App 303, 312-313 n 4 (2009), that
regardless of whether parole is revoked or not revoked, time served awaiting
a subsequent conviction is credited toward the conviction for which the
defendant was on parole. “If parole is revoked, the defendant is obligated to

serve out the balance of the maximum sentence for the conviction that formed
the basis for parole.” Id. at 311, citing MCL 791.238(5) and MCL 791.234.
“If parole is not revoked, the defendant continues to accrue time toward his
[or her] ultimate discharge for the conviction upon which he [or she] enjoys
parole.” Robert Johnson, supra at 311, citing MCL 791.238(6). “The only
time a defendant stops accruing time toward his or her ultimate discharge
from the Department of Corrections is when a parolee has a warrant issued for
a parole violation and the parolee remains at large.” Robert Johnson, supra at
311. “After a warrant is issued, ‘[t]he time from the date of the declared
violation to the date of the prisoner’s availability for return to an institution
shall not be counted as time served.’” Id., quoting MCL 791.238(2).
Special alternative incarceration units. When a defendant is ordered to

participate in a special alternative incarceration (SAI) unit* as a condition of
probation, double jeopardy considerations demand that the time spent there
must be credited against the sentence imposed after the defendant’s probation
violation if placement in the SAI unit is the equivalent of being “in jail.”
People v Hite (After Remand), 200 Mich App 1, 2 (1993) (the boot camp was
enclosed by an eighteen-foot high fence topped with barbed wire).
Double jeopardy considerations when presentence time served is the

equivalent of being “in jail.” Whether credit for time served as a condition
of probation is required by double jeopardy considerations depends on the
meaning of the phrase “in jail” for purposes of both the sentencing credit
statute (MCL 769.11b) and the probation revocation statute (MCL 771.4).
Whiteside, supra at 201. According to the Whiteside Court, typical
rehabilitation programs are not jails as the term is commonly understood, and
rehabilitation programs generally emphasize treatment rather than
incarceration. Id. at 202.
Neither MCL 769.11b nor the state and federal prohibitions against double
jeopardy require that a defendant be given sentence credit for time spent in a
private rehabilitation program as a condition of probation. Whiteside, supra at
202.
For purposes of the state and federal double jeopardy clauses, sentence credit
is required only when the time a defendant was “confined” to a boot camp
program is the equivalent of being “in jail.” US Const, Am V; Const 1963, art
1, § 15; People v Wagner, 193 Mich App 679, 682 (1992); People v Reynolds,
195 Mich App 182, 184 (1992).
Double jeopardy considerations demand that a defendant be given credit for

time spent incarcerated as a condition of probation when the defendant is later
sentenced for violating probation (e.g., a defendant is sentenced to five years’
probation with the first six months to be served in the county jail). People v
Sturdivant, 412 Mich 92, 97 (1981); Hite, supra at 4-5.

Section 8.31
Sheriff’s good-time credits. A probation violator who is sentenced to prison

is entitled to credit for time he or she actually served in jail and for any days
of good-time credit awarded to him or her by the sheriff. MCL 51.282(2);
People v Resler, 210 Mich App 24, 25 (1995). Statutory authority provides for
the revocation of good-time credit in cases involving parole but no such
authority exists in the context of conditional probation. Id. at 27.
“[A]lthough there is no constitutional right to good-time credit,

once a good-time credit provision is adopted and a prisoner earns
that credit, the deprivation of good-time credit constitutes a
substantial sanction, and a prisoner may claim that a deprivation of
good-time credit is a denial of a protected liberty interest without
due process of law.” People v Cannon, 206 Mich App 653, 656
(1994).
Good-time credit earned during a sentence that is later declared invalid does
not transfer to the sentence imposed after the first sentence was declared
invalid. People v Tyrpin, 268 Mich App 368, 369 (2005). When a defendant
is resentenced after a previous sentence is voided, the defendant is entitled
only to credit for the number of days he actually spent incarcerated pursuant
to the invalid sentence. Id. at 373. Credits earned during the time served on
the invalid sentence may not be applied to the defendant’s sentence on
remand. Id. at 373-374.
A trial court cannot deny a defendant the good-time credit opportunities

provided in MCL 51.282(2). That is, in a defendant’s probation order, a court
cannot impose a specific term of imprisonment and indicate the date on which
the defendant is to be released. Cannon, supra at 657.
Sentence reductions due to overcrowding. Where a defendant is sentenced

to probation, the terms of which include incarceration in the county jail, and
the defendant is later sentenced to prison for a probation violation, he or she
is not entitled to credit for any time by which the original incarceration in the
county jail was reduced due to overcrowding. People v Grazhidani, 277 Mich
App 592, 601 (2008). The Grazhidani Court stated:
*People v “Obviously the days that defendant did not serve on his sentence
Whiteside, 437 because of his early release from the county jail under the jail
Mich 188
(1991).
overcrowding act are not time spent ‘in jail.’ Because we read
Whiteside* as concluding that the Legislature only intended to
grant credit for time actually spent ‘in jail,’ we conclude that
defendant is not entitled to credit for time that he otherwise would
have spent in jail except for his early release under the jail-
overcrowding act.” Grazhidani, supra at 599.

8.32 Sentence Bargains and Plea Agreements
“Plea agreement” and “sentence bargain” refer generally to an agreement

reached by the prosecutor, the defendant’s attorney, and the defendant about
the offense(s) to which the defendant has agreed to plead guilty or nolo
contendere in exchange for an agreed-on sentence or sentence
recommendation. Plea agreements and sentence bargains may involve the
prosecutor’s approval of the defendant’s plea to a lesser offense than might be
charged under the circumstances and the defendant’s decision to accept a
specific sentence or recommendation in exchange for his or her plea. The
terms used to describe the negotiation process and eventual outcome are
frequently used interchangeably; for example, sentence bargain, plea
bargain, sentence agreement, and sentence bargain may all be used to refer
to a defendant’s plea in exchange for a specific sentence.
Where a defendant’s sentence will result from a plea-based conviction,* the *A compre-
trial court must determine whether the parties have made a plea agreement. hensive
discussion of
MCR 6.302(C)(1). If a sentence bargain or plea agreement has been made, the the require-
court must ask the parties what the terms of the agreement are and confirm ments of a plea
those terms with all parties, including the defendant. MCR 6.302(C)(2). hearing is
beyond the
scope of this
Before a trial court may sentence a defendant whose guilty or no contest plea monograph.
is part of a plea agreement, the court must comply with the procedure in MCR See Hummel,
6.302(C)(3): Criminal
Procedure
Monograph 3:
“(3) If there is a plea agreement and its terms provide for the Misdemeanor
defendant’s plea to be made in exchange for a specific sentence Arraignments &
disposition or a prosecutorial sentence recommendation, the court Pleas—Revised
Edition (MJI,
may 2006-April
2009), for
“(a) reject the agreement; or information
relevant to both
felony and
“(b) accept the agreement after having considered the misdemeanor
presentence report, in which event it must sentence the plea pro-
defendant to the sentence agreed to or recommended by the ceedings.
prosecutor; or
“(c) accept the agreement without having considered the

presentence report; or
“(d) take the plea under advisement.
“If the court accepts the agreement without having considered the
presentence report or takes the plea agreement under advisement,
it must explain to the defendant that the court is not bound to
follow the sentence disposition or recommendation agreed to by
the prosecutor, and that if the court chooses not to follow it, the
defendant will be allowed to withdraw from the plea agreement.”

Section 8.32
Negotiating a plea agreement or sentence bargain. The extent to which a

trial court may involve itself in sentence negotiations is defined by the
Michigan Supreme Court’s decisions in People v Killebrew, 416 Mich 189
(1982), and People v Cobbs, 443 Mich 276 (1993). Another Supreme Court
decision, People v Williams, 464 Mich 174 (2001), discusses the distinction
between a trial court’s role in sentence negotiations occurring under Cobbs
and Killebrew.
People v Killebrew. Killebrew limits a trial court’s involvement to the

approval or disapproval of an existing agreement between the prosecutor and
the defendant in which the defendant’s plea is linked to the prosecutor’s non-
binding sentence recommendation. Killebrew, supra at 209. Where a trial
court decides not to adhere to the sentence recommendation accompanying
the defendant’s plea agreement, the court must explain to the defendant that it
has decided not to accept the prosecutorial recommendation and the court
must advise the defendant of the sentence it has determined is appropriate to
the circumstances of the offense and the offender. Killebrew, supra at 209;
People v Scott, 197 Mich App 28, 32 (1992). Following the court’s rejection
of the prosecutorial recommendation and its announcement of the intended
sentence, the defendant must be given the opportunity to affirm or withdraw
his or her guilty plea based on the court’s expressed disposition. Killebrew,
supra at 210; Scott, supra at 32. See also People v Shuler, 188 Mich App 548,
551-552 (1991) (where the sentencing court expressly informed the defendant
that it would exceed the sentence recommended by the prosecutor, named the
specific sentence it intended to impose, and permitted the defendant to
withdraw or affirm his guilty plea in light of the court’s announcement).
 Characteristics of negotiations under Killebrew
– a defendant’s plea is linked to a non-binding prosecutorial

sentence recommendation.
– the trial court may accept or reject the agreement as it exists.
– if the court rejects the agreement, the court must indicate what
sentence it believes is appropriate under the circumstances.
– the defendant may affirm or withdraw his or her plea based on the
trial court’s expressed disposition.
People v Cobbs. Cobbs involves a trial court’s participation in sentence

negotiations in the absence of any agreement between the defendant and the
prosecution. Cobbs, supra at 282-284. Cobbs authorizes the trial court to
make a preliminary evaluation of the sentence appropriate to the offense and
the offender if requested by the prosecution or the defendant. Either party may
ask the court to indicate on the record the sentence that appears appropriate
for the charged offense, based on the information then available to the court.
Id. at 283. Even when a defendant pleads guilty or no contest to the charged
offense in reliance on the court’s preliminary determination—a Cobbs
agreement—the court retains discretion over the actual sentence imposed

should additional information dictate the imposition of a longer sentence. Id.

If the court determines it will exceed its previously stated sentence, the
defendant has an absolute right to withdraw the plea. Id.
When a sentencing court decides not to follow the sentence in the plea
agreement, Killebrew requires the court to indicate what sentence it intends to
impose; if the stated sentence is unacceptable to the prosecutor in light of the
lesser offense to which the defendant was permitted to plead, the prosecutor
must have the opportunity to withdraw from the agreement. People v Siebert,
450 Mich 500, 510 (1995).
“[T]he trial court’s exclusive authority to impose sentence does

not allow it to enforce only parts of a bargain. A court may not
keep the prosecutor’s concession by accepting a guilty plea to
reduced charges, and yet impose a lower sentence than the one for
which the prosecutor and the defendant bargained. Accepting a
plea to a lesser charge over the prosecutor’s objection
impermissibly invades the constitutional authority of the
prosecutor. When a court receives information that in its judgment
dictates a lower sentence, it must alert the prosecutor of the
sentence it intends to impose and allow the prosecutor to withdraw
from the plea. Siebert, supra at 510-511 (internal citations and
footnote omitted).
 Characteristics of negotiations under Cobbs
– the defendant or the prosecution asks the trial court what sentence
appears appropriate under the circumstances if a guilty plea was
offered.
– the court’s preliminary evaluation is based on the information then

available and the court retains discretion over the actual sentence
imposed if additional information warrants a longer sentence.
– if the court decides to impose a sentence longer than the sentence

first indicated by the court, the defendant must be given an
opportunity to withdraw his or her plea.
– if the court’s modified sentence is unacceptable to the prosecution,

the prosecutor must be permitted to withdraw from the plea
agreement.
People v Williams. In People v Williams, 464 Mich 174 (2001), the Michigan
Supreme Court distinguished between a trial court’s role in sentence
negotiations occurring under Killebrew and those occurring under Cobbs.
According to the Williams Court, Cobbs modified Killebrew “to allow
somewhat greater participation by the judge.” Williams, supra at 177.
However, the Williams Court ruled that the requirement of Killebrew—when
the court rejects a prosecutorial recommendation it must indicate the sentence
it considers appropriate—does not apply to a Cobbs agreement rejected by the

Section 8.32
same court from which the preliminary sentence evaluation issued. Williams,
supra at 178-179. The Court explained the distinction between Cobbs and
Killebrew as preserving the trial court’s impartiality in sentence negotiations
by minimizing the potential coercive effect of a court’s participation in the
process.
Simply put, a sentencing court is limited to making only one sentence

evaluation as part of the negotiation process. In Killebrew, the court’s one
evaluation occurs after the court has decided not to follow an agreement
between the prosecution and the defendant. In Cobbs, the court’s one
evaluation is the first one in the negotiation process if either party requests it.
Williams reiterates the rule that a sentencing judge may not offer more than
one sentence evaluation in any negotiation process; that is, if the court has
made the first evaluation under Cobbs and later finds that it cannot comply
with that evaluation, Killebrew does not authorize the court to indicate the
sentence it believes is appropriate.
“In cases involving sentence recommendations under Killebrew,

the neutrality of the judge is maintained because the
recommendation is entirely the product of an agreement between
the prosecutor and the defendant. The judge’s announcement that
the recommendation will not be followed, and of the specific
sentence that will be imposed if the defendant chooses to let the
plea stand, is the first involvement of the court, and does not
constitute bargaining with the defendant, since the judge makes
that announcement and determination of the sentence on the
judge’s own initiative after reviewing the presentence report.
“By contrast, the degree of the judge’s participation in a Cobbs

plea is considerably greater, with the judge having made the initial
assessment at the request of one of the parties, and with the
defendant having made the decision to offer the plea in light of that
assessment. In those circumstances, when the judge makes the
determination that the sentence will not be in accord with the
earlier assessment, to have the judge then specify a new sentence,
which the defendant may accept or not, goes too far in involving
the judge in the bargaining process. Instead, when the judge
determines that sentencing cannot be in accord with the previous
assessment, that puts the previous understanding to an end, and the
defendant must choose to allow the plea to stand or not without
benefit of any agreement regarding the sentence.
“Thus, we hold that in informing a defendant that the sentence will

not be in accordance with the Cobbs agreement, the trial judge is
not to specify the actual sentence that would be imposed if the plea
is allowed to stand.” Williams, supra at 179-180.
 The impact of Williams on negotiations

– the Williams decision is implicated only when there exists a Cobbs

agreement (the defendant has agreed to plead guilty based on the
trial court’s preliminary sentence evaluation), and the trial court
determines it will not adhere to the Cobbs agreement.
– the defendant must be given an opportunity to withdraw his or her

guilty plea after the court informs the defendant it will not abide
by the sentence first announced.
– unlike the requirement in Killebrew that arises when the court

refuses to follow a prosecutorial sentence recommendation, when
the trial court decides against imposing the sentence first
articulated by the court itself (the Cobbs agreement), it may not
inform the defendant of the sentence the court has since decided is
appropriate (because to do so would involve the court in the
sentence negotiation process to an extent carefully avoided in
Killebrew and Cobbs).
Failure of a plea agreement. Fundamental fairness requires that promises

made during plea negotiations should be respected, provided that the person
making the promise was authorized to do so and the defendant relied on the
promise to his or her detriment. People v Ryan, 451 Mich 30, 41 (1996). A
defendant is not constitutionally entitled to specific performance of a properly
authorized plea agreement, but due process requires that some remedy be
employed to cure a defendant’s detrimental reliance on the agreement. People
v Wyngaard, 462 Mich 659, 665-667 (2000). Such remedies include specific
performance of the agreement or withdrawal of the plea. Guilty Plea Cases,
395 Mich 96, 127 (1975).
Plea agreements involving probation. A trial court may impose additional *See Section
conditions on a defendant’s sentence of probation, even when the sentence is 8.40 for more
information on
part of the defendant’s plea agreement and did not contain the additional probation.
conditions.* People v Johnson, 210 Mich App 630, 633-634 (1995). In
Johnson, the defendant moved to withdraw his plea or to force specific
performance of the sentence agreement on which he relied when he offered
his nolo contendere plea. According to the defendant, because the additional
conditions imposed by the court were not conditions to which he agreed, he
did not knowingly or voluntarily agree to the sentence imposed. Johnson,
supra at 632.
Based in large part on the “unique features of probation,” the Court of Appeals
affirmed the Johnson defendant’s sentence as imposed by the trial court.
Johnson, supra at 634. Noting that an order of probation may be altered or
amended, in form and substance, without providing the defendant with notice
of the change or an opportunity to be heard about it, the Court concluded “that
a sentencing court may place conditions on a defendant’s probation regardless
of whether it was covered in the plea agreement.” Id. at 634-635.
Plea withdrawals. A defendant is entitled to withdraw his or her plea at any

time before the court accepts the plea on the record. MCR 6.310(A).
Section 8.32
Note: The rules articulated in Williams, Cobbs, and Killebrew,

have been added to MCR 6.310 by amendments that will be
effective January 1, 2006.
MCR 6.310(B), as amended, governs a defendant’s plea

withdrawal after acceptance, but before the defendant is
sentenced:
“(B) Withdrawal After Acceptance but Before Sentence.

After acceptance but before sentence,
“(1) a plea may be withdrawn on the defendant’s

motion or with the defendant’s consent only in the
interest of justice, and may not be withdrawn if
withdrawal of the plea would substantially
prejudice the prosecutor because of reliance on the
plea. If the defendant’s motion is based on an error
in the plea proceeding, the court must permit the
defendant to withdraw the plea if it would be
required by subrule (C).
“(2) the defendant is entitled to withdraw the plea if
“(a) the plea involves a prosecutorial sentence

recommendation or agreement for a specific
sentence, and the court states that it is unable to
follow the agreement or recommendation; the trial
court shall then state the sentence it intends to
impose, and provide the defendant the opportunity
to affirm or withdraw the plea; or
“(b) the plea involves a statement by the court that

it will sentence to a specified term or within a
specified range, and the court states that it is unable
to sentence as stated; the trial court shall provide
the defendant the opportunity to affirm or withdraw
the plea, but shall not state the sentence it intends
to impose.”
*Formerly MCR When a defendant pleads guilty to an offense and may be

6.310(C). sentenced according to the sentencing guidelines for habitual
offenders, a trial court must inform the defendant of the maximum
enhanced sentence possible in order for the defendant to tender an
understanding plea as required by MCR 6.302. People v Boatman,
273 Mich App 405 (2006). According to the Boatman Court:
“The existence of separate guidelines specified for

use with habitual offenders demonstrates the
necessity of informing a defendant of the use of
these guidelines to assure ‘understanding’ of the
consequences of a plea, particularly under the

circumstances of this case where the difference in

sentencing comprised a distinction between a
misdemeanor and a felony, and a difference of 13
years in the sentence being imposed.” Id. at 412.
Although the language in MCR 6.302 cannot be read to require a

court to advise a defendant of the maximum sentence for a habitual
offender, the validity of a defendant’s plea to an offense for which
he or she is to be sentenced as a habitual offender is questionable
when the defendant is informed only of the maximum sentence
permitted for a first conviction of the offense. Boatman, supra at
412. A mere reference to “the guidelines” in the context of a
defendant’s sentence is not sufficient to inform the defendant that
the guidelines to which the court is referring are the enhanced
sentences permitted under the habitual offender provisions of the
sentencing guidelines. Id. at 413. According to the Court, failure
to specify whether the maximum sentence to which a court is
referring is based on the habitual offender or the first-time
offender guidelines “constituted a procedural flaw that resulted in
the failure to properly inform defendant of the consequences of his
plea, rendering it unintelligent.” Id. at 412.
A plea may be vacated on the prosecution’s motion if the

defendant has failed to comply with the terms of his or her plea
agreement. MCR 6.310(E).* As amended, MCR 6.310(E) states:
“(E) Vacation of Plea on Prosecutor’s Motion. On the

prosecutor’s motion, the court may vacate a plea if the
defendant has failed to comply with the terms of a plea
agreement.”
Part VII—Fines, Costs, Assessments, and Restitution

MCL 769.1k* provides a general statutory basis for a court’s authority to *Effective
impose specified monetary penalties when sentencing a defendant and to January 1,
2006. 2005 PA
collect the amounts owed at any time. MCL 769.1k states: 316.
“(1) If a defendant enters a plea of guilty or nolo contendere or if

the court determines after a hearing or trial that the defendant is
guilty, both of the following apply at the time of the sentencing or
at the time entry of judgment of guilt is deferred pursuant to statute
or sentencing is delayed pursuant to statute:
“(a) The court shall impose the minimum state costs as set
forth in [MCL 769.1j].
“(b) The court may impose any or all of the following:

Section 8.32
“(i) Any fine.
“(ii) Any cost in addition to the minimum state cost

set forth in subdivision (a).
“(iii) The expenses of providing legal assistance to

the defendant.
“(iv) Any assessment authorized by law.
“(v) Reimbursement under [MCL 769.1f].
“(2) In addition to any fine, cost, or assessment imposed under

subsection (1), the court may order the defendant to pay any
additional costs incurred in compelling the defendant’s
appearance.
“(3) Subsections (1) and (2) apply even if the defendant is placed
on probation, probation is revoked, or the defendant is discharged
from probation.
“(4) The court may require the defendant to pay any fine, cost, or
assessment ordered to be paid under this section by wage
assignment.
“(5) The court may provide for the amounts imposed under this
section to be collected at any time.
“(6) Except as otherwise provided by law, the court may apply

payments received on behalf of a defendant that exceed the total of
any fine, cost, fee, or other assessment imposed in the case to any
fine, cost, fee, or assessment that the same defendant owes in any
other case.”Ordinarily, unless a court permits and specifies a
different due date, all fines, costs, penalties, and other financial
obligations are due at the time the court orders them. MCR 1.110;
MCL 600.4803(1). An individual who fails to satisfy in full a
penalty, fee, or costs imposed by the court within 56 days after the
amount was due is subject to a late penalty equal to 20 percent of
the amount that remains unpaid. MCL 600.4803(1). The court
must inform an individual that a late penalty will be assessed if
payment is not made within 56 days of the order. Id.
If the court permits delayed payment of the amount due or permits the
individual to pay the amount in installments, the court must inform the
individual of the date on which, or time schedule under which, the total or
partial amount of the fees, costs, penalties, and other financial obligations is
due. MCL 600.4803(1). An individual’s late penalty may be waived if
requested by the person subject to the penalty. Id.

8.33 Fines
Pursuant to MCL 769.1k, courts have general authority to impose “any fine” *In addition to
on a convicted defendant. According to MCL 769.1k(1)(b)(i), at the time of any term of
imprisonment
sentencing or a delay in sentencing or entry of a deferred judgment of guilt, a up to the
court may impose any fine on a defendant convicted by plea (guilty or nolo statutory
contendere) or found guilty by the court after a hearing or trial. Specific maximum of 20
authority to impose a fine, and the maximum amount of that fine, is often years as
determined by
included in the language of the applicable penal statute. For example, if an proper scoring
offender is convicted of violating MCL 750.365, larceny from a car or from a of the
person detained or injured because of an accident, the offender may be sentencing
guidelines.
assessed a fine of not more than $10,000.00.* If a statute authorizes the
imposition of a fine but is silent with regard to the amount, the maximum fine
permitted for a felony conviction is $5,000.00. MCL 750.503.
Whenever an offense is punishable by a fine and imprisonment, the court has

discretion to impose a sentence comprised of any combination of those
penalties: a fine and no imprisonment, no fine and imprisonment, or both a
fine and imprisonment. MCL 769.5. A defendant may be sentenced to
imprisonment until he or she satisfies the amount of the fine and costs
imposed by the court. However, a defendant may not be imprisoned for
nonpayment beyond the time indicated in his or her sentence. Id. In addition
to any fine imposed under MCL 769.1k(1), a defendant may be ordered to pay
any costs incurred to compel his or her appearance. MCL 769.1k(2). The court
may require a defendant to pay by wage assignment any fine imposed under
MCL 769.1k, and the court may provide that any fine imposed under MCL
769.1k be collected at any time. MCL 769.1k(4), (5).
Excessive fines are prohibited by Michigan’s Constitution. Const 1963, art 1, *A violation of
§ 16. A fine must be proportionate to the offense; a fine may be excessive even MCL 333.7401
(2)(a)(iv).
when it falls within the amount authorized by statute. People v Antolovich,
207 Mich App 714, 718 (1995). In Antolovich, the trial court ordered the
defendant to pay the maximum fine permitted by law for the crime he
committed.* On appeal, the Court recognized that although People v
Milbourn, 435 Mich 630 (1990), did not directly address the issue of
proportionality with regard to monetary penalties, Milbourn’s rationale was
appropriate in reviewing the proportionality of the fine in relation to the crime
committed. Antolovich, supra at 719. Even though the fine imposed did not
exceed the statutory limit, the Antolovich Court concluded that the
defendant’s fine was excessive where the “[d]efendant was fined the
maximum amount allowed by the statute for delivering one of the least
amounts necessary to violate the statute.” Id. at 719-720.
As a condition of probation. When a fine is imposed on a defendant

sentenced to probation, payment of the fine may be made a condition of the
defendant’s probation. MCL 771.3(2)(b). A sentencing court may order the
probationer to pay the fine immediately or the court may permit the
probationer to make payment within the time period of his or her probation.
Id.

Section 8.34
The fines authorized by MCL 769.1k(1)(b)(i) also apply when a defendant is

placed on probation, probation is revoked, or a defendant is discharged from
probation. MCL 769.1k(3). A defendant may be required to pay by wage
assignment any fine imposed under MCL 769.1k, MCL 769.1k(4), and the
court may provide that those fines be collected at any time, MCL 769.1k(5).
Unless otherwise required by law, a court may apply any payments made in
excess of the total amount imposed in one case to any amounts owed by the
same defendant in any other case. MCL 769.1k(6).
8.34 Costs
A sentencing court may not order a defendant to pay costs unless those costs
are expressly authorized by a penal or procedural statute. People v Jones, 182
Mich App 125, 126 (1990) (the penal statute under which the defendant was
sentenced, MCL 333.7401(2)(c), provided for punishment by imprisonment
or fine or both, but did not expressly authorize the imposition of costs).
*Effective MCL 769.1k* is a procedural statute that provides a court with general
January 1, authority to impose “[a]ny cost in addition to the minimum state cost” when
2006. 2005 PA
316.
sentencing a defendant in certain circumstances. MCL 769.1k(1)(b)(ii).
Moreover, a defendant may be ordered to pay any additional costs incurred to
compel his or her appearance. MCL 769.1k(2). “The plain language of MCL
769.1k does not require the trial court to consider a defendant’s ability to pay
before imposing discretionary costs and fees . . . .” People v Wallace, 284
Mich App 467, 470 (2009). In addition to the authority to impose costs, MCL
769.1k(4) authorizes a court to order that a defendant pay by wage assignment
any of the costs authorized in MCL 769.1k(1) and (2). A court may provide
for the collection of costs imposed under MCL 769.1k at any time. MCL
769.1k(5). Unless otherwise required by law, a court may apply any payments
made in excess of the total amount imposed in one case to any amounts owed
by the same defendant in any other case. MCL 769.1k(6).
MCL 769.34(6) addresses the sentencing guidelines and the duties of the court
when sentencing, and it authorizes the court to order court costs (“[a]s part of
the sentence, the court may also order the defendant to pay any combination
of a fine, costs, or applicable assessments”). People v Lloyd, 284 Mich App
703, 707-708 (2009). Accordingly, the plain language of MCL 769.1k and
MCL 769.34(6) “expressly grant[] authority to a sentencing court to order a
defendant to pay court costs.” Lloyd, supra at 709. In Lloyd, supra at 706, 709-
710, the Court relied on MCL 769.1k and MCL 769.34(6) to refute the
defendant’s argument that he could not be ordered to pay court costs because
the statute governing the offense of which he was convicted, felony-firearm
(MCL 750.227b), did not contain an express provision allowing costs.
MCL 769.3 and MCL 769.1f are procedural statutes in which court-ordered
costs are expressly authorized. MCL 769.3(1) authorizes conditional
sentencing where a court may order a defendant to pay the costs of
prosecution in cases where the defendant was convicted of an offense

punishable by a fine or imprisonment or both. MCL 769.1f authorizes a

sentencing court to impose the costs of prosecution (among other monetary
penalties) when a defendant is convicted of the offenses listed in the statute.
The offenses for which costs are authorized under MCL 769.1f are discussed
in subsection (B), below.
As a condition of probation. Costs as a condition of probation are authorized *See Section

by MCL 771.3(2)(c).* Any costs awarded under the statute must comply with 8.40 for a
comprehensive
the requirements of MCL 771.3(5): discussion of
probation
“[T]he costs shall be limited to expenses specifically incurred in conditions.
prosecuting the defendant or providing legal assistance to the
defendant and supervision of the probationer.”
A trial court properly imposed costs under MCL 771.3(5) to reimburse the
prosecution’s expense of an expert witness at trial, where the costs were
“expenses specifically incurred in prosecuting the defendant.” People v
Brown, 279 Mich App 116, 139 (2008).
Any costs imposed under MCL 771.3(5) “must bear a reasonable relationship
to the expenses of prosecution.” People v Blachura, 81 Mich App 399, 403
(1978), citing People v Teasdale, 335 Mich 1, 5 (1952).
The costs authorized by MCL 769.1k(1)(b)(ii) and (2) also apply when a
defendant is placed on probation, probation is revoked, or a defendant is
discharged from probation. MCL 769.1k(3). A defendant may be required to
pay by wage assignment any cost imposed under MCL 769.1k, MCL
769.1k(4), and the court may provide that those costs be collected at any time,
MCL 769.1k(5).
When determining the appropriate amount of costs to order and the method by
which a probationer will make payment, a trial court is obligated to consider
a probationer’s financial resources and the burden that costs will have on the
probationer’s other financial obligations. MCL 771.3(6)(a). A sentencing
court has discretion over the means by which a probationer makes payment
for the costs ordered and may require that payment be made immediately or
within a specific period of time or by specified installments. MCL 771.3(7).
A court is prohibited from ordering costs that the probationer cannot and will
not be able to pay during his or her term of probation. MCL 771.3(6)(a).
A trial court may consider a defendant’s potential for employment when

determining the defendant’s ability to pay. People v Brown, 279 Mich App
116, 139 (2008). Where the defendant opted to attend school full-time instead
of working full-time, the trial court concluded that the defendant could pay if
he chose to do so and properly imposed costs under MCL 771.3. Brown, supra
at 139-140.
A probationer who is not in willful default of his or her payment of costs under
MCL 771.3(1)(g) (minimum state cost) or MCL 771.3(2)(c) (expenses

Section 8.34
specifically incurred in the case) may petition the court at any time for
remission of the unpaid part of the total costs ordered. MCL 771.3(6)(b). The
court may modify the method of repayment or remit all or a portion of the
amount due if the court finds that payment in full would impose a manifest
hardship on the probationer or his or her family. Id.
Except for defendants convicted of first- or third-degree criminal sexual

conduct, MCL 769.3(2) authorizes a sentencing court to sentence a defendant
to probation, conditioned on the probationer’s payment of a fine, costs,
damages, restitution, or any combination of these penalties. The court may
establish a time within which the defendant must make repayment in
installments, and if the probationer defaults on any payment, the court may
sentence him or her to the sentence provided by law. Id.
*See Section Probation revocation for failure to comply with conditions. Compliance
8.53 for more with a court’s order to pay costs must be made a condition of probation. MCL
information on
probation
771.3(8). Revocation of probation* is authorized where the probationer fails
revocation. to comply with the order and has failed to make a good faith effort at
compliance. Id. To determine whether an individual’s probation should be
revoked on the basis of unpaid costs, the court must consider the following:
• the probationer’s employment status, earning ability, and financial

resources;
• the willfulness of the probationer’s failure to pay; and
• any other circumstances that may impact the probationer’s ability

to pay. MCL 771.3(8).
When a defendant’s probation is revoked, the trial court’s authority to order

fines and costs is limited by the terms of the statute violated. People v Krieger,
202 Mich App 245, 247 (1993). This is because when an individual’s
probation is revoked, the trial court may sentence the defendant as if the
probation order had never been made. Id.; MCL 771.4. Therefore, any costs
or fines ordered as a condition of probation under MCL 771.3(2) do not
automatically carry over when a defendant is sentenced as a result of
probation revocation. Krieger, supra at 248. When a defendant is sentenced
as if the probation order had never entered, the sentencing court is sentencing
the defendant for the underlying conviction and may order costs or fines only
if the underlying statute expressly authorizes them. Id. at 247. According to
the Krieger Court:
“[T]he trial court can[not] revoke only a portion of the probation

order. In this case, the fines and costs had been assessed as a
condition of probation. Once probation was revoked, no
outstanding conditions existed. Therefore, . . . the trial court was
without authority to retain the imposition of court costs and fines.”
Id. at 248.

A. Costs of Prosecution Authorized by Penal Statutes
A few penal statutes authorize a sentencing court to order a defendant to pay *See
the costs of prosecution after the defendant is convicted. These statutes subsection (B),
below.
address the costs of prosecution only and do not authorize a court to order
other costs that may be permitted pursuant to another statute, e.g., overtime
wages for law enforcement personnel, etc.*
The following statutes authorize a trial court to order a defendant to pay the *Other statutes
costs of prosecution if the defendant is convicted of a felony* described in authorizing
these costs for
these statutes: conviction of a
misdemeanor
• MCL 205.28(2), prohibiting authorized treasury personnel from offense are not
unlawful conduct involving state administration of taxes. This discussed.
statute indicates that the costs of prosecution must be made part of

a defendant’s sentence if the court imposes a fine, imprisonment,
or a combination of both for the conviction. The statutory
language states: a violator “is guilty of a felony, punishable by a
fine of not more than $5,000.00, or imprisonment for not more
than 5 years, or both, together with the costs of prosecution.”
• MCL 257.625k(7), providing false information with regard to an

ignition interlock device. Statutory language authorizes
imprisonment, a fine, or both, “together with the costs of
prosecution” as the penalty for a violation. Like the statute above,
this one indicates that costs of prosecution must be ordered for a
conviction under this statute when the court imposes a fine,
imprisonment, or a combination of both.
• MCL 750.49(5), fighting, baiting, or shooting an animal, or

breeding an animal for those purposes. A court is permitted, but
not mandated, to order an offender convicted under this statute to
pay the costs of prosecution.
• MCL 750.50(4), failing to adequately care for an animal. A court

must order an offender convicted of a third or subsequent violation
of this statute to pay the costs of prosecution.
B. Costs of Emergency Response and Prosecution Under

MCL 769.1f
MCL 769.1f authorizes or requires the court to order the defendant to

reimburse state or local units of government for the costs of emergency
response and prosecution related to his or her commission of an offense
specifically enumerated in the statute. MCL 769.1f(1). Allowable expenses
include:
• the salaries or wages, including overtime pay, of law enforcement

personnel for the time spent responding to the incident, arresting

Section 8.34
and processing the defendant, investigating the incident and

preparing reports, and collecting and analyzing evidence
(including procedures to determine the alcohol/drug content of an
offender’s blood, breath, or urine). MCL 769.1f(2)(a).
• the salaries or wages, including overtime pay, of fire department

and emergency medical service personnel, including volunteer
personnel, for the time spent responding to the incident and in
providing services. MCL 769.1f(2)(b).
• the cost of medical supplies lost or used by the fire department and
emergency medical services personnel, including volunteers.
MCL 769.1f(2)(c).
• the salaries, wages, or other compensation, including overtime

pay, for the time spent by prosecution personnel to investigate and
prosecute the offense. MCL 769.1f(2)(d).
• the costs of extraditing a defendant from another state, including,

but not limited to:
— transportation costs, and
— the salaries or wages, including overtime pay, for time

spent by authorized personnel processing the
extradition and returning the offender to Michigan.
MCL 769.1f(2)(e).
Costs ordered under MCL 769.1f must be paid immediately unless the
court authorizes the individual to pay the amount ordered within a certain
period of time or in specific installments. MCL 769.1f(4). If personnel
from more than one unit of government incurred any of the expenses
described above, the court may require the defendant to reimburse each
unit of government for its expenses related to the incident. MCL
769.1f(3).
As a condition of probation or parole. If an individual required to pay

costs under MCL 769.1f is placed on probation or is paroled, the court-
ordered costs must be a condition of that probation or parole. MCL
769.1f(5).
1. Offenses That Allow a Court To Order Reimbursement of

Costs
In cases involving a conviction for violating or attempting to violate any

of the following statutes, a sentencing court has discretion to order a
defendant to pay the expenses listed above. MCL 769.1f(1)(a)-(i). Costs
listed here are not mandatory, and unless otherwise noted, the following
statutes describe felony offenses to which the statutory sentencing
guidelines apply.

 MCL 257.625(1), operating a motor vehicle while under the influence

of alcoholic liquor and/or a controlled substance, or violating a local
ordinance substantially corresponding to this section. MCL
769.1f(1)(a).
 MCL 257.625(3), operating a motor vehicle while visibly impaired,
or violating a local ordinance substantially corresponding to this
section. MCL 769.1f(1)(a).
 MCL 257.625(4), operating a motor vehicle in violation of §625(1), *MCL 769.1f
(3), or (8) (operating a motor vehicle with the presence of any has not been
amended since
controlled substance)* causing death. MCL 769.1f(1)(a). September 30,
2003, when
 MCL 257.625(5), operating a motor vehicle in violation of §625(1), MCL 257.625
(3), or (8) causing serious impairment of a body function. MCL (8) was added
769.1f(1)(a). to the list of
§625 offenses.
 MCL 257.625(6), “zero tolerance” violations (a minor operating a
motor vehicle with any bodily alcohol content), or violating a local
ordinance substantially corresponding to this section. MCL
769.1f(1)(a).
 MCL 257.625(7), child endangerment (operating a motor vehicle in
violation of §625(1), (3), (4), (5), (6), or (8) when a passenger under
the age of 16 is an occupant of the vehicle). MCL 769.1f(1)(a).
 MCL 257.625m, operating a commercial vehicle while intoxicated, or
violating a local ordinance substantially corresponding to this section.
MCL 769.1f(1)(a).
 MCL 257.626c, felonious driving (as a result of operating a motor
vehicle, snowmobile, ORV, aircraft, vessel, or locomotive while
under the influence of alcohol and/or drugs). MCL 769.1f(1)(b).
 MCL 257.324, negligent homicide (as a result of operating a motor
 MCL 750.321, manslaughter (as a result of operating a motor vehicle,
snowmobile, ORV, aircraft, vessel, or locomotive while under the
influence of alcohol and/or drugs). MCL 769.1f(1)(b).
 MCL 750.316, first-degree murder (as a result of operating a motor
 MCL 750.317, second-degree murder (as a result of operating a motor
 MCL 324.82127(4), operating a snowmobile under the influence of
alcohol and/or drugs causing death. MCL 769.1f(1)(c).

Section 8.34
 MCL 324.82127(5), operating a snowmobile under the influence of

alcohol and/or drugs causing serious impairment of a body function.
MCL 769.1f(1)(c).
 MCL 324.81134(6), third or subsequent conviction for operating an
ORV while under the influence of alcohol and/or drugs. MCL
769.1f(1)(d).
 MCL 324.81134(7), operating an ORV while under the influence of
alcohol and/or drugs causing death. MCL 769.1f(1)(d).
 MCL 324.81134(8), operating an ORV while under the influence of
MCL 769.1f(1)(d).
*Misdemeanor  MCL 324.81135, operating an ORV while visibly impaired.* MCL
offense to which 769.1f(1)(d).
the statutory
guidelines do
 MCL 259.185(4), operating or serving as a crewmember of an aircraft
not apply.
while under the influence of alcohol and/or drugs causing death. MCL
769.1f(1)(e).
 MCL 259.185(5), operating or serving as a crewmember of an aircraft
while under the influence of alcohol and/or drugs causing serious
impairment of a body function. MCL 769.1f(1)(e).
 MCL 259.185(8), third or subsequent conviction for operating or
serving as a crewmember of an aircraft while under the influence of
alcohol and/or drugs. MCL 769.1f(1)(e).
*Sentencing  MCL 324.80176(1) and (3),* general prohibition against operating a
guidelines do vessel while under the influence of alcohol and/or drugs, or while
not apply to
these offenses.
visibly impaired, or violating a local ordinance substantially
corresponding to either of these sections. MCL 769.1f(1)(f).
 MCL 324.80176(4), operating a vessel while under the influence of
alcohol and/or drugs causing death. MCL 769.1f(1)(f).
 MCL 324.80176(5), operating a vessel while under the influence of
MCL 769.1f(1)(f).
 MCL 462.353(5), third or subsequent conviction for operating a
locomotive while under the influence of alcohol and/or drugs. MCL
769.1f(1)(g).
 MCL 462.353(6), operating a locomotive while under the influence
of, or visibly impaired by, alcohol and/or drugs causing death. MCL
769.1f(1)(g).
 MCL 462.353(7), operating a locomotive while under the influence
of, or visibly impaired by, alcohol and/or drugs causing serious
impairment of a body function. MCL 769.1f(1)(g).

 MCL 462.355 (repealed by 2002 PA 658, effective April 1, 2003).* *MCL 769.1f(1)
has not yet
 MCL 750.411a(2)(a), making and communicating to another person been amended
to reflect this
a false report about a violation of chapter XXXIII (MCL 750.200 et change.
seq., explosives, bombs and harmful devices) or about a violation of
MCL 750.327 (death by explosives on a vehicle or vessel), MCL
750.328 (death by explosives in or near a building), MCL 750.397a
(placing harmful objects in food), or MCL 750.436 (poisoning food,
drink, medicine, or water supply). MCL 769.1f(1)(h).
 MCL 750.411a(2)(b), threatening to violate chapter XXXIII (MCL
750.200 et seq., explosives, bombs and harmful devices) or MCL
750.327 (death by explosives on a vehicle or vessel), MCL 750.328
(death by explosives in or near a building), MCL 750.397a (placing
harmful objects in food), or MCL 750.436 (poisoning food, drink,
medicine, or water supply) and communicating the threat to any other
person. MCL 769.1f(1)(h).
 MCL 600.2950(23), criminal contempt involving a personal *Sentencing
protection order against certain individuals known personally by the guidelines do
not apply.
petitioner as specified in the statute.* MCL 769.1f(1)(i).
 MCL 600.2950a(20), criminal contempt involving a personal *Sentencing
protection order against an individual not specified in MCL guidelines do
not apply.
600.2950(1).* MCL 769.1f(1)(i).
 MCL 600.2950i, criminal contempt involving a valid foreign *Sentencing
protection order.* MCL 769.1f(1)(i). guidelines do
not apply.
2. Offenses That Require a Court To Order Reimbursement of
Costs
Expenses must be ordered against an offender for a conviction arising

from any violation or attempted violation of the following statutes. MCL
769.1f(9). Costs listed here are not discretionary, and unless otherwise
noted, the statutes below describe felony offenses to which the statutory
sentencing guidelines apply.
 MCL 750.200, transporting explosives by common carrier.
 MCL 750.200i, manufacturing, delivering, possessing, etc. a harmful

device causing property damage, physical injury, serious impairment
of a body function, or death.
 MCL 750.200j, manufacturing, delivering, possessing, etc. an irritant
device causing property damage, physical injury, serious impairment
of a body function, or death.
 MCL 750.200l, falsely exposing a person to a harmful substance or
device.
 MCL 750.201, transporting certain types of explosives.

Section 8.34
 MCL 750.202, shipping an explosive with false markings.
 MCL 750.204, sending an explosive with malicious intent, or sending

an explosive causing property damage, physical injury, or serious
impairment of a body function.
 MCL 750.204a, sending or transporting an imitation explosive device
with malicious intent.
 MCL 750.207, placing explosives with malicious intent, or placing
explosives causing property damage, physical injury, or serious
impairment of a body function.
 MCL 750.209, placing an offensive/injurious substance with the
intent to injure, or causing property damage, physical injury, or
serious impairment to a body function, or to alarm or annoy.
 MCL 750.209a, possessing an explosive device in a public place.
 MCL 750.210, possessing/carrying an explosive or combustible

substance with malicious intent, or causing property damage, physical
injury, or serious impairment of a body function.
 MCL 750.210a, sale of valerium.
 MCL 750.211a, manufacturing/possessing an explosive or incendiary

device with malicious intent, or causing property damage, physical
injury, or serious impairment of a body function.
 MCL 750.212a, explosives violation involving a vulnerable target
and causing death or injury.
 MCL 750.327, death by explosives on a vehicle or vessel.
*A misde-  MCL 750.327a, sale of explosives to minor.*

meanor offense
to which the  MCL 750.328, death by explosives in or near a building.
guidelines do
not apply.  MCL 750.436, various felony violations involving poisoning food,
drink, medicine, or the water supply causing property damage,
physical injury, or serious impairment of a body function, or falsely
reporting that food, drink, medicine, or the water supply was poisoned.
 MCL 750.543f, terrorism.
 MCL 750.543h, hindering prosecution of terrorism or certain terrorist

acts.
 MCL 750.543k, soliciting or providing material support for terrorism
or terrorist acts.
 MCL 750.543m, threatening or making a false report of terrorism.

 MCL 750.543p, use of the internet/telecommunications to commit

certain terrorist acts.
 MCL 750.543r, possession of vulnerable target information with the
intent to commit certain terrorist acts.
C. Costs of a Court-Appointed Attorney
“If a defendant is able to pay part of the cost of a lawyer, the court may require
contribution to the cost of providing a lawyer and may establish a plan for
collecting the contribution.” MCR 6.005(C).
A trial court is not required to analyze a defendant’s ability to pay a fee for a
court-appointed attorney before imposing the fee; it is only required to do so
if the fee is actually enforced. People v Jackson (Harvey), 483 Mich 271, 275
(2009), overruling in part People v Dunbar, 264 Mich App 240 (2004).
However, “[o]nce an ability-to-pay assessment is triggered, the court must
consider whether the defendant remains indigent and whether repayment
would cause manifest hardship.” Jackson (Harvey), supra at 275. In any
event, “remittance orders of prisoner funds, under MCL 769.1l, generally
obviate the need for an ability-to-pay assessment with relation to defendants
sentenced to a term of imprisonment . . . .” Jackson (Harvey), supra at 275.
As a condition of probation. A court may order a probationer to pay the

expenses incurred in providing legal assistance to him or her. See MCL
771.3(2)(c) and (5)-(8). A probationer who is not in willful default of his or
her payment of costs under MCL 771.3(2)(c) (expenses specifically incurred
in the case) may petition the court at any time for remission of the unpaid part
of the total costs ordered. MCL 771.3(6)(b). The court may modify the
method of repayment or remit all or a portion of the amount due if the court
finds that payment in full would impose a manifest hardship on the
probationer or his or her family. Id.
The general authority to impose the monetary penalties listed in MCL

769.1k(1)(a) and (b) also applies when a defendant is placed on probation,
probation is revoked, or a defendant is discharged from probation. MCL
769.1k(3). A defendant may be required to pay by wage assignment the costs
of his or her legal representation imposed pursuant to MCL 769.1k(1)(b)(iii),
MCL 769.1k(4), and the court may provide that those costs be collected at any
time, MCL 769.1k(5).
8.35 Minimum State Costs

If a defendant is ordered to pay any combination of a fine, costs, or applicable *Effective April
assessments, the court must order the defendant to pay a minimum state cost 1, 2009. 2008
PA 547.
of $68 for each felony conviction.* MCL 769.1j(1)(a).

Section 8.36
Note: The statutory language only clearly requires a court to

impose the minimum state cost if other costs, fines, or assessments
are ordered. However, there is no express prohibition against
ordering the minimum state cost in cases where other costs, fines,
or assessments are not also imposed.
MCL 769.1k provides a court with general authority to impose several

specific monetary penalties at the time a defendant is sentenced, at the time a
defendant’s sentence is delayed, or at the time entry of an adjudication of guilt
is deferred. MCL 769.1k(1)(a) expressly requires a court to “impose the
minimum state costs as set forth in [MCL 769.1j].”
In addition to the authority to impose minimum state costs, a court may order
a defendant to pay any costs incurred to compel his or her appearance. MCL
769.1k(2). MCL 769.1k(4) authorizes a court to order that a defendant pay by
wage assignment any of the costs authorized in MCL 769.1k(1) and (2). A
court may provide for the collection of costs imposed under MCL 769.1k at
any time. MCL 769.1k(5). Unless otherwise required by law, a court may
apply any payments made in excess of the total amount imposed in one case
to any amounts owed by the same defendant in any other case. MCL
769.1k(6).
As a condition of probation. Payment of the minimum state cost must be a

condition of probation. MCL 769.1j(3); MCL 771.3(1)(g). A probationer who
is not in willful default of his or her payment of the minimum state cost may
petition the court at any time for remission of the unpaid part of the total costs
ordered. MCL 771.3(6)(b). The court may modify the method of repayment
or remit all or a portion of the amount due if the court finds that payment in
full would impose a manifest hardship on the probationer or his or her family.
Id.

769.1k(1)(a) also applies when a defendant is placed on probation, probation
is revoked, or a defendant is discharged from probation. MCL 769.1k(3). A
defendant may be required to pay by wage assignment the minimum state
costs imposed pursuant to MCL 769.1k(1)(a), MCL 769.1k(4), and the court
may provide that those costs be collected at any time, MCL 769.1k(5).
8.36 Crime Victim Assessment
Whenever an individual is charged with a felony offense and the charge “is
resolved by conviction, by assignment of the defendant to youthful trainee
status, by a delayed sentence or deferred entry of judgment of guilt, or in
another way that is not an acquittal or unconditional dismissal,” the court must
order the individual to pay a $60.00 crime victim assessment. MCL
780.905(1). In contrast to the minimum state cost, which must be ordered for
each felony conviction arising from a single case, only one crime victim

assessment per case may be ordered, even when the case involves multiple
offenses. MCL 780.905(2).
Note: In addition to felony offenses, crime victim assessments

must be ordered in cases involving persons charged with “serious”
or “specified” misdemeanor offenses. MCL 780.905(1). See
Miller, Crime Victim Rights Manual—Revised Edition (MJI,
2005-April 2009), Section 2.8, for more information about crime
victim assessments.
MCL 769.1k* provides a court with general authority to impose “[a]ny *Effective
assessment authorized by law” on a defendant at the time a defendant is January 1,
2006. 2005 PA
sentenced, at the time a defendant’s sentence is delayed, or at the time entry 316.
of an adjudication of guilt is deferred. MCL 769.1k(1)(b)(iv). In addition to
any assessment imposed, a court may order a defendant to pay any costs
incurred in compelling his or her appearance. MCL 769.1k(2). MCL
769.1k(4) authorizes a court to order that a defendant pay by wage assignment
an assessment imposed pursuant to MCL 769.1k(1)(b)(iv). A court may
provide for the collection of any assessment imposed under MCL 769.1k(1)
at any time. MCL 769.1k(5). Unless otherwise required by law, a court may
769.1k(6).
As a condition of probation. Payment of the crime victim assessment must

be a condition of an offender’s probation. MCL 771.3(1)(f).
The general authority to impose the monetary penalties in MCL 769.1k(1)(b)

also applies when a defendant is placed on probation, probation is revoked, or
a defendant is discharged from probation. MCL 769.1k(3). MCL 769.1k(4)
authorizes a court to order that a defendant pay by wage assignment an
assessment imposed pursuant to MCL 769.1k(1)(b)(iv). A court may provide
for the collection of any assessment imposed under MCL 769.1k(1) at any
time. MCL 769.1k(5).
8.37 Restitution
Restitution in Michigan is a crime victim’s constitutional and statutory right.* *See Miller,
Const 1963, art 1, § 24; MCL 780.766(2). Crime Victim
Rights
Manual—
Restitution is mandatory for an offender convicted of a felony offense. MCL Revised Edition
769.1a(2); MCL 780.766(2). Restitution is also mandatory “[f]or an offense (MJI, 2005-April
that is resolved by assignment of the defendant to youthful trainee status, by 2009), Chapter
10, for a more
a delayed sentence or deferred judgment of guilt, or in another way that is not complete
an acquittal or unconditional dismissal.” MCL 780.766(2). Except for discussion of
restitution payments made to certain entities—service providers or the victim restitution.
services commission, for example—the court must order the convicted felon

Section 8.37
to “make full restitution to any victim of the defendant’s course of conduct

that gives rise to the conviction or to the victim’s estate.” Id.
The amount of court-ordered restitution may not be reduced by the amount of

an unpaid civil judgment obtained by the victim against the defendant. People
v Dimoski, ___ Mich App ___, ___ (2009). MCL 780.766(8) provides in part
that “[t]he court shall not order restitution to be paid to a victim . . . if the
victim . . . has received or is to receive compensation for that loss . . . .” The
“is to receive” language requires actual receipt of compensation or certainty
regarding receipt of compensation, and does not refer to compensation with
the potential to be recovered. Dimoski, supra at ___. The distinction between
restitution and civil damages is reflected in the setoff scheme of MCL
780.766(9), which provides that “[a]ny amount paid to a victim . . . under an
order of restitution shall be set off against any amount later recovered as
compensatory damages by the victim . . . .” Dimoski, supra at ___. “Although
[a] victim [may] have the benefit of both a civil judgment and an order of
restitution to obtain monetary relief from [a] defendant, the availability of two
methods does not mean that the victim will have a double recovery, but
merely increases the potential that the perpetrator of a crime will be forced to
pay for the wrongdoing committed.” Id. at ___.
A civil agreement between a defendant and a crime victim limiting future

claims against the defendant does not negate the statutory requirement that the
defendant be ordered to pay restitution to any victim of the defendant’s
conduct or to an entity from which a victim has received compensation.
People v Bell, 276 Mich App 342, 346-350 (2007).
A sentencing court has the authority to order a defendant to pay restitution to

compensate all victims harmed by the defendant’s course of criminal conduct,
even though the defendant was not convicted of some of the specific criminal
acts committed against some of the victims. People v Gahan, 456 Mich 264,
265 (1997). The plain language of the Crime Victim’s Rights Act (CVRA)
“authorizes the sentencing court to order criminal defendants to pay
restitution to all victims, even if those specific losses were not the factual
predicate for the conviction.” Id. at 270; MCL 780.766(2). In deciding Gahan,
the Court determined that the Legislature’s unqualified use of the phrase
“course of conduct” indicated that the phrase should be given the broad
meaning it enjoyed at common law; “[t]hus, the defendant should compensate
for all the losses attributable to the illegal scheme that culminated in his
conviction, even though some of the losses were not the factual foundation of
the charge that resulted in conviction.” Gahan, supra at 272.
“In determining the amount of restitution to order . . . , the court shall consider
the amount of loss sustained by any victim as a result of the offense.” MCL
780.767(1). If the evidence demonstrates loss based on the replacement value
of stolen items as well as expected profits, the trial court may consider lost
profits in assessing restitution. People v Cross, 281 Mich App 737, 739 (2008)
(relying on determination in People v Guajardo, 213 Mich App 198, 200
(1995), that because MCL 780.767 does not specify how to determine the

amount of loss sustained by a victim, the amount should be based on the

evidence). A defendant’s ability to pay is not a factor properly considered
when determining the appropriate amount of restitution due a crime victim.
MCL 780.767; People v Crigler, 244 Mich App 420, 428 (2001).
The amount of restitution ordered may include the cost of labor necessary to
determine the value of property lost as a result of a defendant’s criminal
conduct, as well as the labor costs involved in replacing the lost property.
People v Gubachy, 272 Mich App 706, 709-714 (2006).
For the purposes of restitution only, “victim” is defined the same way in the
Code of Criminal Procedure and in the CVRA:
“[V]ictim means an individual who suffers direct or threatened

physical, financial, or emotional harm as a result of the
commission of a crime.” MCL 769.1a(1); MCL 780.766(1).
With a few exceptions,* and for purposes of restitution, a victim can be *For example,
legal entities
are not victims
“a sole proprietorship, partnership, corporation, association, for purposes
governmental entity, or any other legal entity that suffers direct of MCL
physical or financial harm as a result of a crime.” MCL 769.1a(1); 780.766(4)
MCL 780.766(1). (physical or
psychological
injury), or MCL
See also In re McEvoy, 267 Mich App 55, 58 (2005) (a school district is a 780.766(5)
victim entitled to restitution under the juvenile code, MCL 712A.1 et seq.). (bodily injury
resulting in
death or serious
Although MCL 780.766(1) authorizes restitution for financial harm sustained impairment of a
by a governmental entity, restitution is not properly ordered for the routine body function).
costs of a criminal investigation when those costs are ordinarily incurred no
matter what the outcome of the investigation. People v Newton, 257 Mich App
61, 69-70 (2003). However, the loss of “buy money” may be included in an
order of restitution because “buy money” does not represent the costs
ordinarily incurred in a county’s criminal investigation and would not have
been subject to loss were it not for the defendant’s commission of a crime. Id.
at 69; Crigler, supra at 424, 427. Where a narcotics enforcement team fails to
recover money expended during a criminal investigation, a victim (the
enforcement team) has suffered financial harm (loss of the “buy money”) as a
direct result of the defendant’s criminal conduct. Id. at 427.
A defendant need not have personally benefited to the extent reflected by the
restitution amount; all that is required is that the defendant’s criminal conduct
caused the amount of loss addressed by the restitution order. People v Lueth,
253 Mich App 670, 692 (2002). See also People v Dewald, 267 Mich App
365, 378-379 (2005), abrogated on other grounds sub nom People v Melton,
271 Mich App 590 (2006) (restitution order was appropriate even though the
defendant did not benefit to the extent of the amount ordered).

Section 8.38
Restitution hearings. The amount of restitution ordered must have

evidentiary support. People v Guajardo, 213 Mich App 198, 200 (1995).
Evidence in support of the loss may come from facts found in a defendant’s
presentence report, from the content of a victim impact statement, or from
information adduced at sentencing. People v Grant, 455 Mich 221, 233-234
(1997); People v Hart, 211 Mich App 703, 706 (1995).
A sentencing court is not required to hold a hearing when determining the type
or amount of restitution appropriate to a case. “Only an actual dispute,
properly raised at the sentencing hearing in respect to the type or amount of
restitution, triggers the need to resolve the dispute by a preponderance of the
evidence.” Grant, supra at 243; MCL 780.767(4).
If a restitution hearing is necessary, MCL 780.767(4) specifies the burdens of

proof and production:
“Any dispute as to the proper amount or type of restitution shall be

resolved by the court by a preponderance of the evidence. The
burden of demonstrating the amount of the loss sustained by a
victim as a result of the offense shall be on the prosecuting
attorney.”
“‘Preponderance of the evidence’ means such evidence, as, when weighed

with that opposed to it, has more convincing force and the greater probability
of truth.” People v Cross, 281 Mich App 737, 740 (2008) (prosecution
evidence and the victim’s “essentially expert testimony” regarding the income
loss resulting from the crime supported the trial court’s order of restitution for
the income loss).
A defendant is foreclosed from challenging a court’s restitution order in all

plea agreements negotiated after restitution was made mandatory (May 1,
1994) because a defendant is presumed to know that restitution will be
ordered when he or she pleads guilty to an offense to which restitution applies.
People v Ronowski, 222 Mich App 58, 60-61 (1997).
The rules of evidence, with the exception of those relating to privilege, do not
apply to restitution hearings. MRE 1101(b)(3).
As a condition of probation. Restitution must be a condition of probation.

MCL 771.3(1)(e).
8.38 Use of Bail Money to Pay Costs, Fines, Restitution,

and Other Assessments
When a defendant personally makes the cash deposit required for his or her
bond, the defendant must be notified that if he or she is convicted, the cash
deposit may be applied to any court-ordered fine, costs, restitution,
assessment, or other payment. MCL 765.6c. If a defendant’s bond or bail is
discharged and the defendant himself or herself personally supplied cash for
the bond or bail, the balance of the cash may be used toward payment of any
court-ordered fine, costs, restitution, assessment, or other payment. MCL
765.15(2). In cases where the court ordered the defendant to pay a fine, costs,
restitution, assessment, or other payment, the court must order that payment
be made from a defendant’s personally deposited cash bond or bail after it has
been discharged. Id.
Allocation of the funds available under MCL 765.15, and of payments made *Provisions in
by a defendant toward the total amount owed, is governed by MCL 775.22.* the Crime
Victim’s Rights
Act concerning
 Fifty percent of the amount available or received must be applied to the allocation of
victim payments (without regard to the underlying violation). MCL funds mirror
775.22(2); 780.766a(2); 780.794a(2); and 780.826a(2). those in MCL
775.22. See
MCL 780.766a,
“‘Victim payment’ means restitution paid to a victim or a MCL 780.794a,
victim’s estate but not to reimburse a person who paid the and MCL
780.826a.
victim for loss or to pay a crime victim assessment.” MCL
775.22(5).
In cases involving violations of state law, the balance of the amount available
or received (after fifty percent is applied to the victim payment) must be
apportioned in the following order of priority:
• Payment of the minimum state cost.
• Payment of other costs.
• Payment of fines.
• Payment of probation or parole supervision fees.
• Payment of assessments and other payments.
MCL 775.22(3); 780.766a(3); 780.794a(3); and 780.826a(3).
In cases involving violations of local ordinances, the balance of the amount

available or received (after fifty percent is applied to the victim payment)
must be apportioned as follows:
• Payment of the minimum state cost.
• Payment of fines and other costs.
• Payment of assessments and other payments.
MCL 775.22(4); 780.766a(4); 780.794a(4); and 780.826a(4).

Section 8.39
MCL 780.766a(1) governs the allocation of money collected from an offender

who is obligated to make payments in more than one proceeding and who,
when making a payment, fails to specify the proceeding to which the payment
applies. MCL 780.766a(1) states in part:
“If a person is subject to fines, costs, restitution, assessments,

probation or parole supervision fees, or other payments in more
than 1 proceeding in a court and if a person making a payment on
the fines, costs, restitution, assessments, probation or parole
supervision fees, or other payments does not indicate the
proceeding for which the payment is made, the court shall first
apply the money paid to a proceeding in which there is unpaid
restitution to be allocated as provided in this section.”
If a person making a payment indicates that the payment is to be applied to

victim payments, or if the payment is received as a result of a wage
assignment or from the department of corrections, sheriff, department of
human services, or county juvenile agency, the payment must first be applied
to victim payments. MCL 780.766a(2); MCL 780.794a(2); MCL
780.826a(2).
8.39 Probation Supervision Fee

*See Section Offenders must pay a probation supervision fee when sentenced in circuit
8.40 for a court.* MCL 771.3(1)(d). A table of probation supervision fees as determined
detailed
discussion of
by an offender’s income is included in MCL 771.3c.
probation.
“[T]he court shall consider the probationer’s projected income and financial
resources” when determining the appropriate amount of that probationer’s
supervision fee. MCL 771.3c(1). In any event, the monthly supervision fee
may not exceed $135.00 and may not continue for more than 60 months. Id.
If a supervision fee is ordered for months in which a probationer is already
subject to a supervision fee, the court must waive the fee having the shortest
duration. Id.
Part VIII—Specific Types of Sentences
8.40 Probation
MCL 771.1(1) details the offenses for which a defendant may be sentenced to
probation:
“In all prosecutions for felonies, misdemeanors, or ordinance

violations other than murder, treason, criminal sexual conduct in
the first or third degree, armed robbery, or major controlled

substance offenses, if the defendant has been found guilty upon

verdict or plea and the court determines that the defendant is not
likely again to engage in an offensive or criminal course of
conduct and that the public good does not require that the
defendant suffer the penalty imposed by law, the court may place
the defendant on probation under the charge and supervision of a
probation officer.”
Note: Although not included in MCL 771.1(1), the court may not *See Appendix
place a defendant on probation when the defendant was convicted G for a list of
these offenses.
of any of the offenses for which mandatory prison sentences are
prescribed by statute.*
Attempted offenses and orders of probation. The Legislature’s omission of

attempted felonies from the crimes for which probation may not be ordered is
evidence of its intent that probation be an alternative to other sentences
authorized for convictions under the attempt statute (MCL 750.92). People v
McKeown, 228 Mich App 542, 545 (1998).
Order of probation. When a court sentences a defendant to probation, the

court must, in a court order filed with the case and made part of the record, set
the length of the probationary period and determine the terms on which the
probation is conditioned. MCL 771.2(2).
Length of probation. Except as provided in MCL 771.2a, which deals with

probation periods for stalking offenses, the term of probation imposed on a
defendant convicted of a felony offense must not exceed five years. MCL
771.2(1). “Felony” includes two-year misdemeanors. MCL 761.1(g); People
v Smith, 423 Mich 427, 434 (1985).
Note: Effective March 1, 2003, 2002 PA 666 eliminated the

“lifetime probation” provision in MCL 771.1(4). Prior to the
amendment, a trial court could sentence a defendant to lifetime
probation for violating or conspiring to violate MCL
333.7401(2)(a)(iv) or MCL 333.7403(2)(a)(iv). 2002 PA 666 also
amended MCL 771.2. Although the amendment eliminated
lifetime probation, it did not affect the lifetime probation
sentences imposed before the amendment’s effective date—
March 1, 2003. MCL 771.2(3) continues to prohibit any reduction
in the probation period imposed under former MCL 771.1(4)
“other than by a revocation that results in imprisonment or as
otherwise provided by law.”
Mandatory terms and conditions of probation. A sentence of probation

contains a number of conditions, some of which are mandatory. During the
term of an individual’s probation, the probationer must comply with the
mandatory conditions of probation listed in MCL 771.3(1)(a)-(h):

Section 8.40
– the probationer must not violate any criminal law (Michigan,

federal, or any other state, or any ordinance of any municipality
located in Michigan or another state);
– the probationer must not leave the state without the court’s
consent;
– the probationer must report (in writing or in person) to his or her

probation officer monthly, or as frequently as the probation officer
requires;
– if the probationer is sentenced in circuit court, he or she must pay

a probation supervision fee pursuant to MCL 771.3c;
– the probationer must pay restitution to the victim of the

probationer’s course of conduct leading to the conviction or to the
victim’s estate;
– the probationer must pay a crime victim assessment pursuant to

MCL 780.905;
– the probationer must pay the minimum state cost as provided in

MCL 769.1j; and
– if required, the probationer must be registered under the sex

offenders registration act (MCL 28.721 to 28.732).
MCL 769.1k(1)(a) requires a court to impose minimum state costs on a

defendant at the time a defendant is sentenced, at the time a defendant’s
sentence is delayed, or at the time entry of an adjudication of guilt is deferred.
MCL 769.1k(1)(a) also applies when a defendant is placed on probation,
769.1k(2).
For minimum state costs ordered pursuant to MCL 769.1k, MCL 769.1k(3)
authorizes a court to order that a defendant pay such costs by wage
assignment. In addition, a court may provide for the collection of any costs
imposed pursuant to MCL 769.1k at any time. MCL 769.1k(4).
If a defendant is placed on probation for an offense listed in MCL 28.722 in

the sex offenders registration act (SORA), the defendant’s probation officer
must register the defendant or must accept the defendant’s registration. MCL
771.2(4).
Discretionary terms and conditions. Discretionary conditions of probation

are found in MCL 771.3(2)(a)-(q) and (3). In addition to the mandatory
conditions listed above, a trial court is permitted to order the probationer to:
– be incarcerated in the county jail for a maximum period of 12

months or up to the maximum period of confinement allowed for
the charged offense if less than 12 months;

Note: A period of incarceration may be served at one time

or at consecutive or nonconsecutive intervals. The
probationer may be allowed day parole or a work or school
release from jail.
– pay immediately, or within the period of his or her probation, any

fine imposed when the probationer was placed on probation;
Note: A fine imposed as a condition of probation is not

limited to the maximum fine authorized by the criminal
statute under which a defendant was convicted and is being
sentenced. MCL 771.3(2)(b); People v Oswald, 208 Mich
App 444, 445-446 (1995) ($1,500 fine imposed as a
condition of probation was valid where underlying statute
permitted a maximum fine of $1,000 for conviction).
– pay any costs warranted by the circumstances of the case or costs

that the court deems proper;
Note: Costs ordered must be “limited to expenses

specifically incurred in prosecuting the defendant or
providing legal assistance to the defendant and supervision
of the probationer.” MCL 771.3(5). A defendant may be
ordered to pay the costs of prosecution and the costs of
defense. People v Humphreys, 221 Mich App 443, 451-
452 (1997). A court cannot order a defendant to reimburse
the county (state, municipality, or other unit of
government, depending on the circumstances of the
prosecution) for the costs of his or her pretrial
confinement. People v Houston, 237 Mich App 707, 718-
719 (2000). A trial court may impose costs under MCL
771.3(5) to reimburse the prosecution’s expense of an
expert witness at trial, because such costs are “expenses
specifically incurred in prosecuting the defendant.” People
v Brown, 279 Mich App 116, 139 (2008).
– pay an assessment ordered by the court other than the crime victim
assessment;
– perform community service;
– agree to pay any restitution, assessment, fine, or cost imposed by

wage assignment;
– participate in inpatient or outpatient drug treatment or a drug *Effective
treatment court;* January 1,
2005. 2004 PA
219.
Note: Subject to the agreement of the defendant, the
defendant’s attorney, the prosecutor, the judge of the
transferring court, the judge of the receiving court, and the

Section 8.40
prosecutor of the receiving drug treatment court’s funding

unit, a drug treatment court may accept participants from
any other jurisdiction based on the participant’s residence
or the unavailability of a drug treatment court in the
jurisdiction where the participant is charged. MCL
600.1062(4).
– participate in mental health treatment;
– participate in mental health or substance abuse counseling;
– participate in a community corrections program;
– be under house arrest;
– be subject to electronic monitoring;
– participate in a residential probation program;

*See Section – satisfactorily complete a program in a special alternative
8.47, below, for incarceration unit* pursuant to MCL 771.3b;
more
information.
– be subject to conditions reasonably necessary for the protection of
one or more named persons;
– reimburse the county for expenses incurred in connection with the

probationer’s conviction pursuant to MCL 801.81 et seq.;
*Effective May – complete his or her high school education or the equivalent by
26, 2004. 2004 completing a general education development (GED) certificate;*
PA 116.
or
– be subject to other lawful conditions deemed proper by the court

or warranted by the circumstances of the case.
Note: Discretionary conditions imposed under MCL

771.3(3)—“other lawful conditions of probation as the
circumstances of the case require or warrant, or as in [the
court’s] judgment are proper”—should be “lawfully and
logically related to the defendant’s rehabilitation.” People
v Johnson, 210 Mich App 630, 634 (1995).
*Effective MCL 769.1k* provides a court with general authority to impose a fine, costs,
January 1, expenses of providing legal assistance, assessments, and reimbursement
2006. 2005 PA
316.
under MCL 769.1f on a defendant at the time a defendant is sentenced, at the
time a defendant’s sentence is delayed, or at the time entry of an adjudication
of guilt is deferred. In addition, a defendant may be ordered to pay any costs
incurred to compel his or her appearance. MCL 769.1k(2). MCL 769.1k(1)
and (2) also apply when a defendant is placed on probation, probation is
revoked, or a defendant is discharged from probation. MCL 769.1k(3). A

defendant may be required to pay by wage assignment the penalties imposed

pursuant to MCL 769.1k(1) and (2). MCL 769.1k(4). The court may provide
that those penalties be collected at any time. MCL 769.1k(5). Unless
otherwise required by law, a court may apply any payments made in excess of
the total amount imposed in one case to any amounts owed by the same
defendant in any other case. MCL 769.1k(6).
Amending an order of probation. A sentencing court has discretion to alter

the form or substance of an order of probation at any time during the
probationary term. MCL 771.2(2). An order of probation may be amended
without providing the probationer with notice of the amendment and an
opportunity to be heard. MCL 771.2(2); People v Britt, 202 Mich App 714,
716 (1993). A probationer’s due process rights are implicated when
amendment of the conditions of his or her probation would “result[] in a
fundamental change in the defendant’s liberty interest.” Id. at 716.
Placement in an electronic tether program is not the equivalent of confinement

and does not constitute a change in liberty interests sufficient to require that a
defendant be given notice and an opportunity to be heard before his or her
probation order is amended to include such a placement. Id. at 717.
Plea agreements and orders of probation. A defendant is not entitled to

withdraw his or her plea or to demand specific performance of a plea
agreement when a trial court imposes otherwise valid conditions on the
defendant’s probation that were not included in the plea agreement. Johnson,
supra at 634-635.
Stalking offenses and orders of probation. In accord with the general rule
in MCL 771.2(1), an individual convicted of violating MCL 750.411h
(stalking) may be sentenced to no more than five years of probation. MCL
771.2a(1); MCL 750.411h(3). A probationary period imposed for a stalking
conviction is subject to the terms and conditions of probation contained in
MCL 750.411h(3) and MCL 771.3. MCL 771.2a(1). In addition to other
lawful conditions imposed, MCL 750.411h(3) permits a court to order a
defendant sentenced to probation to:
– refrain from stalking any individual during the term of probation;
– refrain from any contact with the victim of the offense for which
the defendant is placed on probation;
– be evaluated to determine whether the defendant needs

psychiatric, psychological, or social counseling; and
– if the court determines it is appropriate, receive the indicated

counseling at the defendant’s own expense. MCL 750.411h(3)(a)-
(c).
An individual who is sentenced to probation for a violation of MCL 750.411i

(aggravated stalking) may be sentenced to probation for any term of years, but

Section 8.40
the court must sentence the individual to a term of probation of not less than
five years. MCL 771.2a(2); MCL 750.411i(4). A probationary period
imposed for an aggravated stalking conviction is subject to the terms and
conditions of probation contained in MCL 750.411i(4) and MCL 771.3. MCL
771.2a(2). MCL 750.411i(4) also authorizes a court to order a defendant who
is sentenced to probation to:
– refrain from stalking any individual during the term of probation;
– refrain from any contact with the victim of the offense for which
the defendant is placed on probation;
– be evaluated to determine whether the defendant needs

psychiatric, psychological, or social counseling; and
– if the court determines it is appropriate, receive the indicated
counseling at the defendant’s own expense. MCL 750.411i(4)(a)-
(c).
*“Listed Sex offenders and probation orders. Except for the non-probationable
offenses” are offenses in MCL 771.1 and as otherwise provided by law, a court may place
described in
MCL 28.722 of
an individual convicted of a “listed offense”* on probation for any term of
the Sex years but not less than five years. MCL 771.2a(5). Additional conditions of
Offenders probation must be ordered when an individual is placed on probation under
Registration MCL 771.2a(5). Subject to the provisions in MCL 771.2a(7)-(11), discussed
Act.
below, the court must order an individual placed on probation under MCL
771.2a(5) not to do any of the following:
• reside within a student safety zone, MCL 771.2a(6)(a);
• work within a student safety zone, MCL 771.2a(6)(b); or
• loiter within a student safety zone, MCL 771.2a(6)(c).
A “student safety zone” is defined as the area that lies 1,000 feet or less from
school property. MCL 771.2a(12)(f).
For purposes of MCL 771.2a, “school” and “school property” are defined in
MCL 771.2a(12) as follows:
“(d) ‘School’ means a public, private, denominational, or

parochial school offering developmental kindergarten,
kindergarten, or any grade from 1 through 12. School does not
include a home school.
“(e) ‘School property’ means a building, facility, structure, or real

property owned, leased, or otherwise controlled by a school, other
than a building, facility, structure, or real property that is no longer
in use on a permanent or continuous basis, to which either of the
following applies:

“(i) It is used to impart educational instruction.
“(ii) It is for use by students not more than 19 years of age

for sports or other recreational activities.”
Individuals exempted from probation under MCL 771.2a(5). Even if a

person was convicted of a “listed offense,” MCL 771.2a(11) permits the court
to exempt that person from being placed on probation under subsection (5) if
either of the following circumstances apply:
“(a) The individual has successfully completed his or her

probationary period under [the youthful trainee act] for
committing a listed offense and has been discharged from youthful
trainee status.
“(b) The individual was convicted of committing or attempting to *Fourth-degree
commit a violation solely described in [MCL 750.520e(1)(a)*], CSC where the
individual is at
and at the time of the violation was 17 years of age or older but less least 5 years
than 21 years of age and is not more than 5 years older than the older than the
victim.” victim and the
victim is at least
13 years of age
Exceptions to the mandatory probation conditions concerning “school but less than 16
safety zones.” Under the circumstances described below, the prohibitions years of age.
found in MCL 771.2a(6)(a)-(c) do not apply to individuals convicted of a
“listed offense.”
Residing within a student safety zone. The court shall not prohibit an *MCL
individual on probation after conviction of a “listed offense” from residing 771.2a(7)(a)-
(c), effective
within a student safety zone, MCL 771.2a(6)(a), if any of the following January 1,
apply:* 2006. 2005 PA
126.
“(a) The individual is not more than 19 years of age and attends
secondary school or postsecondary school, and resides with his or
her parent or guardian. However, an individual described in this
subdivision shall be ordered not to initiate or maintain contact with
a minor within that student safety zone. The individual shall be
permitted to initiate or maintain contact with a minor with whom
he or she attends secondary or postsecondary school in
conjunction with that school attendance.
“(b) The individual is not more than 26 years of age, attends a

special education program, and resides with his or her parent or
guardian or in a group home or assisted living facility. However,
an individual described in this subdivision shall be ordered not to
initiate or maintain contact with a minor within that student safety
zone. The individual shall be permitted to initiate or maintain
contact with a minor with whom he or she attends a special
education program in conjunction with that attendance.

Section 8.40
“(c) The individual was residing within that student safety zone at
the time the amendatory act that added this subdivision was
enacted into law. However, if the individual was residing within
the student safety zone at the time the amendatory act that added
this subdivision was enacted into law, the court shall order the
individual not to initiate or maintain contact with any minors
within that student safety zone. This subdivision does not prohibit
the court from allowing contact with any minors named in the
probation order for good cause shown and as specified in the
probation order.”
In addition to above exceptions, the prohibition against residing in a student

safety zone, MCL 771.2a(6)(a), does not prohibit a person on probation after
conviction of a “listed offense” from “being a patient in a hospital or hospice
that is located within a student safety zone.” MCL 771.2a(8). The hospital
exception does not apply to a person who initiates or maintains contact with a
minor in that student safety zone. Id.
Working within a student safety zone. If a person on probation under MCL

771.2a(5) was working within a student safety zone at the time the
amendatory act adding these prohibitions was enacted into law, he or she
cannot be prohibited from working in that student safety zone, MCL
771.2a(6)(b). MCL 771.2a(9). If a person was working within a student safety
zone at the time of this amendatory act, “the court shall order the individual
not to initiate or maintain contact with any minors in the course of his or her
employment within that safety zone.” Id. As with MCL 771.2a(7)(c), for good
cause shown, a court is not prohibited by MCL 771.2a(9) from allowing the
probationer contact with any minors named in the probation order and as
specified in the probation order. MCL 771.2a(9).
If an individual on probation under MCL 771.2a(5) only intermittently or

sporadically enters a student safety zone for work purposes, the court shall not
impose the condition in MCL 771.2a(6)(b) that would prohibit the person
from working in a student safety zone. MCL 771.2a(10). Even when a person
intermittently or sporadically works within a student safety zone, he or she
shall be ordered “not to initiate or maintain contact with any minors in the
course of his or her employment within that safety zone.” Id. For good cause
shown and as specified in the probation order, the court may allow the person
contact with any minors named in the order. Id.
Termination of the probation period. When a probationer’s term of

probation terminates, the probationer officer must report to the court that the
probation period has ended. MCL 771.5. The officer must also inform the
court of the probationer’s conduct during the probation period. Id. After
receiving the report, the court may discharge the probationer and enter
judgment of a suspended sentence, or the court may extend the probationer’s
supervision period up to the maximum period of probation permitted. Id.

8.41 Delayed Sentencing
Delayed sentencing and deferred sentencing are often used interchangeably to

refer to the statutory process described in this subsection. In fact, the
dictionary definitions for “delay” and “defer” are nearly identical—“put off,
postpone” and “put off, delay,” respectively. Merriam-Webster’s Collegiate
Dictionary, 10th ed (1999). Unlike deferred adjudication, which is discussed
in Section 8.42, below, in a case involving a delayed or deferred sentence, the
defendant’s guilt is adjudicated and the resulting conviction remains on record
without regard to the outcome of the period of delay. In delayed sentencing,
the defendant is not placed on probation; that is, no sentence is imposed.
Rather, the period of delay is provided to the defendant so that he or she may
demonstrate to the court that probation is an appropriate sentence for the
defendant’s conviction. People v Saylor, 88 Mich App 270, 274-275 (1979).
The court may require the defendant to comply with any of the applicable
terms and conditions associated with a sentence of probation. MCL 771.3(9).
In an action in which the defendant could be placed on probation, the court

may elect to delay imposing sentence on the defendant for up to one year to
allow the defendant to show that he or she is a good candidate for probation
or leniency. MCL 771.1(2) states:
“In an action in which the court may place the defendant on

probation, the court may delay sentencing the defendant for not
more than 1 year to give the defendant an opportunity to prove to
the court his or her eligibility for probation or other leniency
compatible with the ends of justice and the defendant’s
rehabilitation such as participation in a drug treatment court under
. . . MCL 600.1060 to 600.1082. When sentencing is delayed, the
court shall enter an order stating the reason for the delay upon the
court’s records. The delay in passing sentence does not deprive the
court of jurisdiction to sentence the defendant at any time during
the period of delay.”
Length of the delay. A court is not deprived of jurisdiction over a defendant

whose delay in sentencing exceeds one year, as long as there is good cause for
the delay. People v Dubis, 158 Mich App 504, 506 (1987). Where a delay
exceeding one year is not justified, the sentence imposed must be vacated
because the court lacked the authority to impose it. Id. at 507. Even when a
defendant’s sentence is vacated, the defendant’s conviction remains, and
therefore, the defendant remains subject to any collateral consequences that
result from a criminal conviction. Id. Where no good cause was shown for a
delay of only two days, the Michigan Court of Appeals ruled that the trial
court was without jurisdiction to sentence the defendant. People v Boynton,
185 Mich App 669, 671 (1990). But see People v McLott, 70 Mich App 524,
529 (1976) (delay of 13 days past the one-year deadline was not fatal to the
court’s jurisdiction where the delay was explained by illness and
unavailability on the part of the trial judge and counsel), and People v
Richards, 205 Mich App 438, 443 (1994) (14-month delay was acceptable

Section 8.41
because statute does not preclude a defendant from waiving the one-year
limitation or consenting to a lengthier delay).
Permissible conditions or terms of the delay. “Reasonable conditions may

be imposed for the delay if they will give the defendant an opportunity to
prove his or her eligibility for probation or leniency.” People v Saenz, 173
Mich App 405, 409 (1988). Requiring a defendant to participate in a drug
court, MCL 771.1(2), or obtain psychiatric treatment, may be valid conditions
of a delayed sentence. Saenz, supra at 409. Jail incarceration is not a valid
condition of a delayed sentence. Id.
Failure to comply with conditions of delay. Because a defendant has a due

process right to a sentencing hearing at which he or she can challenge any
inaccuracies in the PSIR, it follows that a defendant is entitled to explain to
the court any mitigating circumstances that prevented him or her from
compliance with the conditions of delay. People v Fisher, 106 Mich App 616,
618-619 (1981). According to the Fisher Court:
“We believe that principles of fairness mandate that, where, as

here, the trial court gives a defendant an opportunity to
demonstrate eligibility for lenient treatment, defendant is entitled
to a hearing as to whether failure to comply with conditions
imposed on defendant was in fact due to circumstances beyond
defendant’s control.” Id. at 619.
However, a defendant sentenced for failure to comply with the conditions of

a delayed sentencing order is not entitled to the same type of hearing as is a
defendant whose probation is revoked. Saylor, supra at 274-275; People v
Salgat, 173 Mich App 742, 746 n 8 (1988). The due process rights of a
defendant sentenced after failing to comply with the terms of delay are
satisfied when the defendant is afforded the opportunity to challenge any
inaccuracies in his or her PSIR at sentencing, and the defendant’s attorney is
provided with a copy of the defendant’s PSIR. Saylor, supra at 275.
Supervision fees. In cases involving delayed sentencing, supervision fees are

authorized under MCL 771.1(3).
MCL 771.1(3) states in part:
“If a defendant is before the circuit court and the court delays
imposing sentence under subsection (2), the court shall include in
the delayed sentence order that the department of corrections shall
collect a supervision fee . . . .”
MCL 771.1(3) contains the monetary considerations to be applied to a

defendant whose sentencing has been delayed. The court must determine the
amount of the monthly supervision fee owed by a defendant by considering
the defendant’s projected income and financial resources. Id. Unlike the
supervision fee ordered when a defendant is sentenced to a probationary

period that may be for as many as 60 months (MCL 771.3c(1)), the

supervision fee ordered in cases of delayed sentencing can be for no more than
12 months. MCL 771.1(3). The maximum monthly amount that may be
ordered is $135.00, and a defendant cannot be subject to more than one
supervision fee at a time. Id.
Other costs. In addition to a supervision fee, a defendant whose sentencing is

delayed must pay the minimum state costs detailed in MCL 769.1j. MCL
769.1k(1)(a); MCL 771.3(1)(g). A trial court may impose on a defendant
whose sentence is delayed any applicable conditions of probation listed in
MCL 771.3(1), (2), and (3), including any costs, assessments, etc. found there.
MCL 769.1k provides a court with general authority to impose fines, costs,
expenses of providing legal assistance, assessments, and reimbursement
under MCL 769.1f on a defendant at the time his or her sentence is delayed.
MCL 769.1k(1). A court may also order a defendant whose sentence is
delayed to pay any additional costs incurred to compel his or her attendance.
MCL 769.1k(2). MCL 769.1k(4) authorizes a court to order a defendant to
pay those monetary penalties by wage assignment. In addition, a court may
provide for the collection of any penalties imposed pursuant to MCL 769.1k
at any time. MCL 769.1k(5). Unless otherwise required by law, a court may
769.1k(6).
8.42 Deferred Adjudication of Guilt
Delayed or deferred sentencing is not the same as a deferred adjudication of

guilt. In cases involving deferred adjudication, the defendant pleads or is
found guilty of the offense charged, but the adjudication is not immediately
entered. Instead, the court places the defendant on probation and if the terms
and conditions of probation are completed successfully, the court must
discharge the defendant and dismiss the proceedings against him or her.
Having successfully completed the term of probation imposed for the offense,
no judgment of guilt is entered against the defendant.
If an individual violates a term or condition of probation imposed during the

probation period, the court is not required to enter a judgment of guilt. When
a defendant fails to comply with the terms or conditions of his or her
probation, the court may exercise its discretion in determining whether to
continue the probation or enter an adjudication of guilt and proceed to
sentence the defendant as otherwise authorized.
A court may defer adjudication of guilt and place an individual on probation

under certain conditions involving offenses in the following areas:
 controlled substances, MCL 333.7411;
 minor in possession, MCL 436.1703;

Section 8.42
 impaired healthcare professional, MCL 750.430;
 domestic violence/spouse abuse, MCL 769.4a;
 youthful trainee status, MCL 762.11; and
 parental kidnapping, MCL 750.350a.
The procedure involved in deferred adjudication cases is similar for all six of
the areas listed above. However, because deferral under the youthful trainee
act, MCL 762.11 et seq., requires attention to circumstances not shared by the
other five statutes, this area is discussed separately in Section 8.43, below.
The steps of the process for deferral under the remaining five areas—
controlled substances, minor in possession, impaired healthcare professional,
domestic violence/spouse abuse, and parental kidnapping—are discussed in
general below, and provisions unique to any of the five areas in which a
deferred adjudication of guilt is available will be noted within the discussion
itself.
A. Defendant Must Have No Previous Convictions for

Offenses Specified in Statute
To qualify for deferral, a defendant must not have a previous conviction for
any of the offenses specified by the applicable statute.
Controlled substances (“§7411”). To qualify for deferral under MCL

333.7411, a defendant must have no previous convictions for an offense listed
under article 7 of the controlled substance act or an offense under any statute
of the United States or any state related to narcotic drugs, stimulants,
depressants, hallucinogenic drugs, cocaine, or marijuana. MCL 333.7411(1).
A conviction entered simultaneously with the charge to which a defendant

seeks deferment under §7411 is not a “previous conviction” for purposes of
§7411 and so does not render the defendant ineligible for §7411 status. People
v Ware, 239 Mich App 437, 442 (2000).
Minor in possession. An individual must not have a previous conviction or a

juvenile adjudication for violating MCL 436.1703(1), which prohibits a minor
from purchasing/attempting to purchase, consuming/attempting to consume,
possessing/attempting to possess alcoholic liquor or having any bodily
alcohol content. MCL 436.1703(3).
Impaired healthcare professional. A defendant must not have a previous

conviction for violating MCL 750.430(1) (engaging in the practice of his or
her profession with a certain bodily alcohol content or while under the
influence of a controlled substance that visibly impairs the individual’s ability
to practice safely). In addition, to qualify for deferral under this provision, the
conduct for which the defendant seeks deferral must not have resulted in
physical harm or injury to the patient. MCL 750.430(8)(a).

Domestic violence/spouse abuse. A defendant must have no previous

convictions for violating MCL 750.81 (domestic assault and battery) or MCL
750.81a (domestic assault causing serious injury) or a local ordinance
substantially corresponding to MCL 750.81. MCL 769.4a(1).
Parental kidnapping. A defendant must not have a previous conviction for

violating MCL 750.350a (adoptive or natural parent taking a child, or
retaining a child for more than 24 hours, with intent to conceal or detain),
MCL 750.349 (kidnapping), MCL 750.350 (taking a child under age 14 from
the child’s parent, adoptive parent, or legal guardian), or for violating any
statute of the United States or other state related to kidnapping. MCL
750.350a(4).
B. Defendant’s Guilt Is Established by Plea or by Verdict
Generally, to qualify for deferral a defendant must plead guilty to or be found

guilty of an offense listed in the statutory provision under which deferred
adjudication is sought.
§7411. A defendant must plead guilty to or be found guilty of an offense listed

in the statute. These offenses are possession of a controlled substance under
MCL 333.7403(2)(a)(v), MCL 333.7403(2)(b), (c), or (d); or use of a
controlled substance under MCL 333.7404; or possession or use of an
imitation controlled substance under MCL 333.7341 for a second time. MCL
333.7411(1).
Minor in possession. Under this statutory provision, the individual must

plead guilty to or offer a plea of admission in a juvenile delinquency
proceeding for a violation of MCL 436.1703(1). MCL 436.1703(3).
Impaired healthcare professional. The statutory provision contains no

language requiring a plea or other finding of guilt. See MCL 750.430(8)(a).
The provision later refers to the court’s entry of an adjudication of guilt, an act
that implicitly requires that the defendant’s guilt be established in some
manner.
Domestic violence/spouse abuse. An individual must plead guilty to or be

found guilty of a violation of MCL 750.81 or MCL 750.81a. The statutory
provision also requires that the victim of the defendant’s conduct be a person
listed in the statute: the defendant’s spouse/former spouse, an individual with
whom the defendant has a child in common, an individual who is dating or has
dated the defendant, or an individual residing or who has resided in the same
household as the defendant. MCL 769.4a(1).
Parental kidnapping. An individual must plead guilty to or be found guilty

of a violation of MCL 750.350a. MCL 750.350a(4).

Section 8.42
C. Defendant Must Consent to a Deferral of Adjudication
§7411. Deferred adjudication requires the defendant’s consent. MCL

333.7411(1).
Minor in possession. Deferred adjudication requires the defendant’s consent.

MCL 436.1703(3).
Impaired healthcare professional. In addition to the defendant’s consent,

deferred adjudication also requires the prosecutor’s consent. MCL
750.430(8)(a).
Domestic violence/spouse abuse. In addition to the defendant, the

prosecuting attorney in consultation with the victim must consent to a
defendant’s deferred adjudication. MCL 769.4a(1).
Parental kidnapping. The defendant must consent to deferred adjudication.

MCL 750.350a(4).
D. Defendant Placed on Probation and Proceedings

Deferred
When all of the above requirements are satisfied, the court places the
defendant on probation, further proceedings are deferred, and no judgment or
adjudication of guilt is entered.
§7411. MCL 333.7411(1).
Minor in possession. MCL 436.1703(3).
Impaired healthcare professional. MCL 750.430(8)(a).
Domestic violence/spouse abuse. The statutory language specifically

conditions the deferral of proceedings on the court’s obligation to first contact
the department of state police to determine, according to police records, that
the defendant has not been previously convicted of violating MCL 750.81 or
MCL 750.81a, or a local ordinance substantially corresponding to MCL
750.81, and that the defendant has not previously availed himself or herself of
the deferral described in MCL 769.4a. MCL 769.4a(1). If the records show
that a defendant was arrested under any of the above statutory provisions but
do not show a disposition, the court must contact the arresting agency and the
court with jurisdiction over the violation to determine the disposition of the
arrest. Id.
Parental kidnapping. MCL 750.350a(4).

E. Terms and Conditions of Probation Imposed Pursuant to

Deferred Adjudication Provisions
When a court defers entry of a defendant’s judgment of guilt and places the
defendant on probation, the court generally has discretion to impose any
lawful term or condition on the defendant. MCL 771.3(9). These conditions
are defined in MCL 771.3(1), (2), and (3) and discussed in Section 8.40,
above. Any mandatory terms or conditions of probation imposed under each
of the areas discussed in this subsection are outlined below.
MCL 769.1k(1)* provides a court with general authority to impose fines, *Effective
costs, expenses of providing legal assistance, assessments, and January 1,
2006. 2005 PA
reimbursement under MCL 769.1f on a defendant at the time entry of 316.
judgment is deferred. In addition, a court may order a defendant to pay any
additional costs incurred to compel his or her appearance. MCL 769.1k(2).
769.1k(1) and (2) also applies when a defendant is placed on probation,
769.1k(3). MCL 769.1k(4) authorizes a court to order that a defendant pay
those monetary penalties by wage assignment. In addition, a court may
provide for the collection of the penalties imposed pursuant to MCL 769.1k at
any time. MCL 769.1k(5). Unless otherwise required by law, a court may
769.1k(6).
§7411. Under §7411, the defendant must pay a probation supervision fee as
prescribed by MCL 771.3c. MCL 333.7411(1). The statutory language in
MCL 333.7411(1) expressly mentions only that a defendant may be ordered
to participate in a drug treatment court, but the court is authorized to impose
any other term or condition it deems appropriate to the offense and the
offender.
A defendant convicted of violating article 7 of the controlled substance act *“Major

(except for violations of MCL 333.7401(2)(a)(i) to (iv) or MCL controlled
substance
333.7403(2)(a)(i) to (iv)*) may, as part of the defendant’s confinement or offenses” are
probation, be required to attend a program addressing the medical, discussed in
psychological, and social effects of the misuse of drugs. MCL 333.7411(4). detail in Section
The defendant may be required to pay a fee for the program, and failure to 8.16.
complete a court-ordered program is a violation of the terms and conditions

of the defendant’s probation. Id.
If a defendant is twice convicted of violating MCL 333.7341(4),* the court *Prohibits use/
must order the defendant to undergo substance abuse screening and possession with
intent to use an
assessment before the court imposes a sentence under MCL 333.7411(1). imitation
MCL 333.7411(5). As part of a sentence imposed under MCL 333.7411(1), controlled
the defendant may be required to participate in and successfully complete one substance.
or more appropriate rehabilitation programs. MCL 333.7411(5). The
defendant must pay the costs of screening, assessment, and rehabilitative

Section 8.42
services, and failure to complete a court-ordered drug program is a violation

of the defendant’s probation. Id.
Minor in possession. The minor must comply with the sanctions outlined in
MCL 436.1703(1)(a):
• a fine of not more than $100.00;
• participation in substance abuse prevention services or substance

abuse treatment and rehabilitation services as defined in MCL
333.6107(4) and (5);
• community service; and
• payment for and participation in substance abuse screening and

assessment pursuant to MCL 436.1703(4).
The minor must also pay costs including the minimum state cost described in
MCL 712A.18m and MCL 769.1j and probation costs required by MCL
771.3. MCL 436.1703(3). Probation costs in MCL 771.3 include the
mandatory supervision fee in MCL 771.3c. MCL 771.3(1)(d).
Impaired healthcare professionals. The defendant must participate in the

health professional recovery program established by MCL 333.16167. The
statutory provision expressly mentions only that a defendant may be ordered
to participate in a drug treatment court, but the court may impose any other
term or condition it deems appropriate. There is no mention of a supervision
fee in the statutory provisions governing deferred adjudication for healthcare
professionals under MCL 750.430(8)(a).
Domestic violence/spouse abuse. No mandatory terms or conditions of

probation are required by the provision authorizing deferral for the offenses
listed in this statute. MCL 769.4a expressly mentions only that a defendant
may be required to participate both in a mandatory counseling program and a
drug treatment court, but the court may impose any lawful term or condition
deemed appropriate to the offense and the offender. MCL 769.4a(3). The
defendant may be required to pay the reasonable costs of the counseling
program. Id. No mention of a supervision fee is made in the provisions
governing deferral under this statute. MCL 769.4a.
Parental kidnapping. No mandatory terms or conditions of probation are

required by the provision authorizing deferral for the offenses listed in this
statute. The accused parent may be placed on probation “with lawful terms
and conditions . . . includ[ing] participation in a drug treatment court[.]” MCL
750.350a(4). The statutory language does not mention a supervision fee. MCL
750.350a.

F. Failure to Successfully Complete the Probationary Period
With the exceptions detailed below, the court generally has discretion to enter
a judgment of guilt and proceed to sentencing when a defendant violates a
term or condition of his or her probation.
§7411. The court has discretion to enter a judgment of guilt and proceed to
sentencing when a defendant violates a term or condition of probation or
otherwise fails to successfully complete a probationary period imposed under
the deferral provisions of §7411. MCL 333.7411(1). Adjudication of guilt is
not mandatory under §7411 under these circumstances.
Minor in possession. The court has discretion to enter a judgment of guilt or

finding of responsibility when a defendant or juvenile violates a term or
condition of probation, or when the court finds that the defendant or juvenile
is using MCL 436.1703(3) in another court. MCL 436.1703(3).
Domestic violence/spouse abuse. Except as described below, a court has

discretion to enter an adjudication of guilt and proceed to sentencing when a
defendant violates a term or condition of his or her probation. MCL 769.4a(2).
A court must enter an adjudication of guilt and proceed to sentencing if the *Use of
defendant commits an assaultive crime during the period of his or her “commits” and
“violates”
probation. MCL 769.4a(4). An “assaultive crime” for purposes of this indicates that
provision means an offense defined in MCL 770.9a(3) or a violation of MCL conviction is not
750.81 to MCL 750.90g. MCL 769.4a(4)(a)(i) and (ii).* There are more than necessary to
50 offenses that constitute an “assaultive crime” as described in this trigger the
mandatory
subsection. For a comprehensive list of these offenses, see Appendix E. entry of an
adjudication of
Entry of an adjudication of guilt (and proceeding as otherwise provided by the guilt under this
subsection.
appropriate statutory provision) is also mandatory if the defendant violates a
court order requiring that the defendant receive counseling for his or her
violent behavior or the defendant violates a court order prohibiting contact
with a named individual. MCL 769.4a(4)(b) and (c).
G. Successful Completion of the Probationary Period
Generally, a court must discharge the individual and dismiss the proceedings
against him or her when the individual has fulfilled the terms and conditions
of his or her probationary period.
§7411. MCL 333.7411(1).

Section 8.42
Domestic violence/spouse abuse. MCL 769.4a(5).
H. Discharge and Dismissal Without Entry of an

Adjudication of Guilt
§7411. With the exception of determining an individual’s eligibility for

discharge and dismissal from a drug treatment court (MCL 600.1076),
discharge and dismissal under §7411 is not a conviction for purposes of the
statute under which the individual was granted a deferred adjudication of guilt
(MCL 333.7411) or for purposes of disqualifications or disabilities imposed
by law for criminal convictions. MCL 333.7411(1). Additionally, the
discharge and dismissal is not a conviction for purposes of the penalties
imposed for subsequent convictions under MCL 333.7413. Id.
When a defendant has successfully completed the term of probation imposed

under MCL 333.7411, the felony charge is dismissed and is not a felony
conviction for purposes of the concealed pistol licensing act (CPLA), MCL
28.421 et seq. Carr v Midland Co Concealed Weapons Licensing Bd, 259
Mich App 428, 438 (2003).
Minor in possession. Discharge and dismissal under MCL 436.1703 is

without an adjudication of guilt or a determination of responsibility in a
delinquency proceeding and is not a conviction or juvenile adjudication for
purposes of MCL 436.1703 or for purposes of disqualifications or disabilities
imposed by law for criminal convictions (including additional penalties
imposed under this section for subsequent convictions or juvenile
adjudications). MCL 436.1703(3).
Impaired healthcare professional. A discharge and dismissal under MCL

750.430(8)(a) is without entry of a judgment of guilt. A discharge and
dismissal under this statute is not a conviction for purposes of MCL
750.430(8)(a) and is not a conviction for purposes of disqualifications or
disabilities imposed by law for criminal convictions, including the additional
penalties imposed for subsequent convictions under this statute. MCL
750.430(8)(a).
Domestic violence/spouse abuse. The statutory language used in this

provision indicates that a discharge and dismissal under this statute is not a
conviction for purposes of the statute or for purposes of disqualifications and
disabilities imposed by law. MCL 769.4a(5). However, the statutory
provision does not expressly state that a discharge and dismissal is not a
conviction for purposes of subsequent convictions subject to additional
penalties. Id.

Parental kidnapping. Unlike other deferred adjudication statutes, this statute

does not include language excepting a discharge and dismissal under this
provision from being considered a conviction for purposes of this section.
MCL 750.350a(4) states only that a “[d]ischarge and dismissal under this
subsection . . . is not a conviction for purposes of disqualifications or
disabilities imposed by law upon conviction of a crime, including any
additional penalties imposed for second or subsequent convictions.”
I. Record of Deferred Adjudication
§7411. A discharge and dismissal following a defendant’s successful

fulfillment of probation under the deferred adjudication provisions of MCL
333.7411 is not a prior misdemeanor conviction for purposes of scoring PRV
5. People v James, 267 Mich App 675, 678-680 (2005). MCL 333.7411(1)
specifically states that “[d]ischarge and dismissal under [MCL 333.7411]
shall be without adjudication of guilt and . . . is not a conviction for purposes
of this section or for purposes of disqualifications or disabilities imposed by
law upon conviction of a crime . . . .”
The state police record and identification division must retain a nonpublic
record of an arrest and discharge and dismissal under §7411. MCL
333.7411(2). See MCL 333.7411(2)(a)-(c) for circumstances under which,
and people to whom, the record will be furnished. An offender whose
adjudication of guilt is deferred under MCL 333.7411 and whose case is
dismissed upon successful completion of the terms of probation does not
qualify as “not guilty” for purposes of MCL 28.243(8), and is therefore not
entitled to the destruction of his or her fingerprints and arrest card. People v
Benjamin, 283 Mich App 526, 527, 537 (2009).
Minor in possession. During the period when proceedings are deferred and
the individual is on probation, the court must maintain a nonpublic record of
the matter. MCL 436.1703(3). The secretary of state must retain a nonpublic
record of a plea and discharge and dismissal under this section. Id. See MCL
436.1703(3)(a)-(b) for circumstances under which, and people to whom, the
record will be furnished.
Impaired healthcare professional. The state police record and identification

division must retain a nonpublic record of an arrest and discharge and
dismissal under this section. MCL 750.430(8)(a). If requested, the record shall
be furnished to a court or police agency to determine whether a person
accused of violating this section has already utilized the deferral provision,
and to a court, police agency, or prosecutor to determine whether a defendant
is eligible for discharge and dismissal from a drug treatment court pursuant to
MCL 600.1076. MCL 750.430(8)(a)(i)-(ii).
Domestic violence/spouse abuse. The state police record and identification

division must retain a nonpublic record of an arrest and discharge and
dismissal under this section. MCL 769.4a(6). The record shall be furnished, if
requested, to a court or a policy agency or a prosecuting attorney to determine
Section 8.42
whether a person accused of violating MCL 750.81 or MCL 750.81a has

already utilized the deferral provision in this section or to determine whether
a defendant is eligible for discharge and dismissal from a drug treatment court
pursuant to MCL 600.1076. MCL 769.4a(6).
An offender whose adjudication of guilt was deferred pursuant to MCL

769.4a and whose case is dismissed after successful completion of a
diversionary program does not qualify as “not guilty” and is not entitled to the
destruction of his or her fingerprint card under MCL 28.243(8). McElroy v
Michigan State Police Criminal Justice Information Ctr, 274 Mich App 32
(2007).
Parental kidnapping. The state police record and identification division

must retain a nonpublic record of an arrest and discharge and dismissal under
this section. MCL 750.350a(4). Records shall be furnished, if requested, to a
court or police agency to determine whether a criminal defendant has already
used the deferral provision in this section and, if requested, to a court, police
agency, or prosecutor to determine whether a defendant is eligible for
discharge and dismissal from a drug treatment court under MCL 600.1076.
MCL 750.350a(4)(a) and (b).
J. Only One Discharge and Dismissal Available
Generally, an individual may obtain only one discharge and dismissal under
each of the areas discussed in this section.
§7411. MCL 333.7411(1).
Domestic violence/spouse abuse. MCL 769.4a(6).
Parental kidnapping. The statute governing deferred adjudication in this

area does not contain any language limiting a defendant to only one discharge
and dismissal. However, because the language does not except a discharge
and dismissal under this section from being considered a conviction for
purposes of this statute, an individual who has once utilized the deferral
provisions of the parental kidnapping statute is ineligible to use them again by
virtue of his or her previous “conviction.” MCL 750.350a(4). In addition,
MCL 750.350a(4)(a) contains a disclosure provision similar to those used in
other areas that imply a limit of one discharge and dismissal.

8.43 Youthful Trainee Act—Deferred Adjudication
The youthful trainee act establishes an opportunity for individuals who

commit crimes after the age of 17 but before the age of 21 to avoid having a
criminal record. People v Rahilly, 247 Mich App 108, 113 (2001). The Rahilly
Court aptly summarizes the purpose of, and procedure involved in, disposing
of cases under the act:
“Pursuant to [the youthful trainee act], an individual within the

restricted age range may plead guilty of a specified offense, and
the court having jurisdiction may assign the individual to the status
of youthful trainee. Once having assigned the individual to the
status of youthful trainee, the court may commit the individual to
custodial supervision for not more than three years in a specially
designated Department of Corrections facility, place the
individual on probation for not more than three years, or commit
the individual to the county jail for not more than one year. MCL
762.13. Thus, the individual assigned to youthful trainee status is
nonetheless punished for the crime committed. The individual
assigned to youthful trainee status derives a benefit from the status
if he successfully completes the punishment imposed.” Rahilly,
supra at 113.
No previous convictions for offenses listed. To qualify for deferral under the
youthful trainee act, the offense for which the individual seeks deferral must
not be one of the offenses listed in MCL 762.11(2) or (3) and must not have
involved any of the circumstances described in those subsections.
An individual is not eligible for deferral as a youthful trainee if the offense for
which the individual seeks deferral is any of the following:
• a felony punishable by life imprisonment;

• a major controlled substance offense;* *Major
controlled
• a traffic offense; substance
offenses are
discussed in
A “traffic offense” is a violation of the Michigan vehicle Section 8.16.
code, MCL 257.1 to 257.923, or a violation of a local
ordinance substantially corresponding to the vehicle code
that involves the operation of a vehicle and is a felony or
misdemeanor offense at the time of the violation. MCL
762.11(4)(b).
• a violation, attempted violation, or conspiracy to violate MCL

750.520b (CSC-I), MCL 750.520c (CSC-II), with the exception of
§520d(1)(a), MCL 750.520d (CSC-III), and with the exception of
§520e(1)(a), MCL 750.520e (CSC-IV); or

Section 8.43
• a violation, attempted violation, or conspiracy to violate MCL

750.520g (assault) with the intent to commit CSC-I, CSC-II, CSC-
III (with the exception of MCL 750.520d(1)(a)), or CSC-IV (with
the exception of MCL 750.520e(1)(a)).
MCL 762.11(2)(a)-(e).
An individual is not eligible for deferral as a youthful trainee if any of the

following apply to the offender or to the offense for which the individual seeks
deferral:
*A “listed • the individual has a previous conviction or adjudication for an

offense” means offense listed* in MCL 28.721 to 28.732 requiring registration
the term as it is
defined in MCL
under the sex offenders registration act (SORA);
28.722. MCL
762.11(4)(a). • the individual is charged with an offense listed in MCL 28.721 to
28.732 requiring registration under SORA, unless the individual
proves by clear and convincing evidence that he or she is unlikely
to engage in further conduct subject to the requirements of SORA;
• the court determines that the offense involved a factor contained in

MCL 750.520b(1)(a) to (h), MCL 750.520c(1)(a) to (l), MCL
750.520d(1)(b) to (e), or MCL 750.520e(1)(b) to (f).
MCL 762.11(3)(a)-(c).
Individual must consent to deferred adjudication. MCL 762.11(1). An

individual must petition the court for consideration under MCL 762.11 prior
to his or her guilty plea. People v Hardesty, 67 Mich App 376, 379 (1976).
Guilt is established by plea. An individual must plead guilty to an eligible

criminal offense committed on or after his or her 17th birthday but before his
or her 21st birthday. MCL 762.11(1). An individual over the age of 14 may be
assigned to youthful trainee status if jurisdiction over that individual has been
waived under MCL 764.27. MCL 762.15.
Proceedings are deferred. When the above requirements are satisfied with
regard to an individual seeking deferral as a youthful trainee, no judgment of
conviction is entered and further proceedings are deferred. MCL 762.11(1).
Terms and conditions imposed pursuant to deferred adjudication

provisions. Disposition of cases involving an individual assigned to the status
of youthful trainee depends first on the punishment permitted for conviction
of the crime committed by the individual. If the underlying offense is
punishable by more than one year of imprisonment, the court must do one of
three things:
– commit the individual for not more than three years to the
Department of Corrections for custodial supervision and training
in a facility designed for that purpose; or
– subject to the conditions contained in MCL 771.3,* including *See Section

participation in a drug treatment court, place the individual on 8.40, above.
probation for not more than three years; or
– commit the individual to the county jail for not more than one year.
MCL 762.13(1)(a)-(c).
If a youthful trainee is committed to the county jail, the

court may permit work release or release for educational
purposes. MCL 762.13(4).
If the underlying offense is punishable by one year or less of imprisonment,

the court must place the individual on probation for not more than two years,
subject to the conditions contained in MCL 771.3. MCL 762.13(2).
If a youthful trainee is placed on probation under either MCL 762.13(1) or (2),

the court must order the individual to pay a supervision fee for each month
during which the individual is on probation, up to 36 months. MCL 762.13(5).
MCL 769.1k* provides a court with general authority to impose fines, costs, *Effective
expenses of providing legal assistance, assessments, and reimbursement January 1,
2006. 2005 PA
under MCL 769.1f on a defendant at the time entry of an adjudication of guilt 316.
is deferred. In addition, a court may order a defendant to pay any additional
costs incurred to compel his or her appearance. MCL 769.1k(2). The general
authority to impose the monetary penalties listed in MCL 769.1k(1) and (2)
also applies when a defendant is placed on probation, probation is revoked, or
a defendant is discharged from probation. MCL 769.1k(3). MCL 769.1k(4)
authorizes a court to order a defendant to pay those monetary penalties by
wage assignment. In addition, a court may provide for the collection of the
penalties imposed pursuant to MCL 769.1k at any time. MCL 769.1k(5).
Whenever an individual charged with a felony offense is assigned to youthful

trainee status, the court must order the individual to pay a $60.00 crime victim
assessment. MCL 780.905(1). Only one crime victim assessment per case
may be ordered, even when the case involves multiple offenses. MCL
780.905(2).
Note: In addition to felony offenses, crime victim assessments

must be ordered in cases involving persons charged with “serious”
or “specified” misdemeanor offenses. MCL 780.905(1). See
Miller, Crime Victim Rights Manual—Revised Edition (MJI,
2005-April 2009), Section 2.8, for more information about crime
victim assessments.
Court’s discretion over a youthful trainee’s status. “[T]he court . . . may,

at any time, terminate its consideration of the individual as a youthful trainee
or, once having assigned the individual to the status of a youthful trainee, may
Section 8.43
at its discretion revoke that status any time before the individual’s final
release.” MCL 762.12. However, it appears that a youthful trainee is entitled
to a hearing before his or her status is revoked. People v Roberson, 22 Mich
App 664, 668-669 (1970); People v Webb, 89 Mich App 50, 53 (1979).
No provision in the youthful trainee act prohibits a court from modification of

an individual’s probation or early dismissal of the criminal charges against an
individual assigned to the status of youthful trainee. People v Bobek, 217
Mich App 524, 530 (1996). However, a court must not terminate a term of
probation without sufficient reason. Id. at 531 (early dismissal was improper
because media exposure generated by the individual’s role in competitive ice
skating was unrelated to the individual’s rehabilitation).
Adjudication of guilt and sentencing on the underlying offense is not

mandatory when an individual’s youthful trainee status is revoked or
consideration is terminated. Whether to enter a judgment of guilt and proceed
to sentencing under these circumstances is within the court’s discretion. MCL
762.12. However, an individual’s youthful trainee status must be revoked if
the individual violates the requirements of the sex offender registration act. Id.
If an individual’s youthful trainee status is revoked and he or she is sentenced,

the court must specifically credit the individual’s sentence with any time
served as a youthful trainee in an institutional facility or in a county jail. Id.
Successful completion of the probationary period. When an individual’s

youthful trainee status was not revoked or consideration of the individual for
youthful trainee status was not terminated and the individual’s release from
youthful trainee status is final, the court must discharge the individual and
dismiss the proceedings against him or her. MCL 762.14(1).
Discharge and dismissal is without adjudication of guilt. With the

exception of two circumstances found in SORA, assignment of an individual
to the status of youthful trainee is not a conviction, and after release, the
individual shall not be subject to a civil disability or loss of right or privilege
because of his or her past status as a youthful trainee. MCL 762.14(2). For
purposes of SORA, an individual’s youthful trainee status may be a
“conviction” if the individual was assigned the status of youthful trainee
before October 1, 2004, or if the individual was assigned the status of youthful
trainee on or after October 1, 2004, the individual’s status was revoked and an
adjudication of guilt was entered. MCL 28.722(a)(ii)(A)-(B).
Note: A youthful trainee assigned before October 1, 2004, for an

offense listed in MCL 28.722 of SORA must comply with the
requirements of that act. MCL 762.14(3).
*Effective Nonpublic record of deferral retained. Unless a conviction is entered, all
January 1, proceedings related to the disposition of the criminal charge and the
2005. 2004 PA
226.
individual’s assignment to youthful trainee status shall be closed to public
inspection. MCL 762.14(4). However, those records are open to Michigan

courts, the Department of Corrections, the Department of Human Services

(formerly the Family Independence Agency), law enforcement personnel, and
prosecuting attorneys* for the limited purpose of performing their job duties.
Id.
When no conviction results from an individual’s youthful trainee status, the

closed hearings established by MCL 762.14(4) are necessary to prevent the
harm the youthful trainee act seeks to prevent—public knowledge of the
criminal proceedings pending against a youthful trainee. Bobek, supra at 530.
No specified limit on use of deferral provision. The statute governing an

individual’s assignment to the status of youthful trainee does not contain any
language limiting the number of times an individual may utilize the provisions
of the statute. See MCL 762.11 et seq.
See also People v Giovannini, 271 Mich App 409, 410 (2006), where the
Court of Appeals held that a “defendant was not ineligible for sentencing
under the [Youthful Trainee Act] solely because he was convicted of two
criminal offenses.” The Court explained: “Interpreting MCL 762.11 to permit
placement under the [Youthful Trainee Act] only in cases involving a single
offense would work contrary to the discretion invested in the trial court and to
the overall purpose of the act.” Giovannini, supra at 417.
8.44 Conditional Sentences
A court may impose a conditional sentence when sentencing a defendant

whose offense falls within the circumstances clearly defined in MCL 769.3:
 The conviction must be for an offense punishable by fine or

imprisonment or both.
When a defendant’s conviction is punishable by a fine, by

imprisonment, or both, and the court imposes a conditional
sentence, any incarceration to which the defendant may be subject
is conditioned on the defendant’s payment of the fine imposed.
MCL 769.3(1).
 A conditional sentence requires the court to order that the

defendant pay restitution in addition to the fine imposed.
In addition to the fine imposed, the statutory language expressly

instructs the court to order the defendant to pay restitution if a
conditional sentence is imposed. MCL 769.3(1).
 A defendant may avoid imprisonment if he or she pays both the

fine and restitution within the time limit set by the court.
The court must sentence a defendant as provided by law

(according to the term of imprisonment indicated by the statute

Section 8.44
under which the defendant was convicted) if the defendant fails to

pay the amounts ordered. MCL 769.3(1). A conditional sentence
must express the time limit by which the fine ordered must be paid.
Id.; People v Tims, 127 Mich App 564, 566 (1983).
 A court may order the defendant to pay the costs of prosecution in

addition to the fine imposed and restitution due.
The court has discretion to order a defendant to pay the costs of

prosecution when a defendant is given a conditional sentence that
includes payment of a fine. The costs of prosecution may not be
ordered in the absence of a fine. MCL 769.3(1). Because a
defendant may be ordered to pay the costs of prosecution only if
the court imposes a fine, a conditional sentence of incarceration or
payment of costs is invalid under the plain language of the statute.
Tims, supra at 565-566.
 With the exception of defendants convicted of CSC-I or CSC-III,

the court may place a defendant on probation conditioned on his
or her payment of a fine, costs, damages, or restitution.
A defendant not convicted of CSC-I or CSC-III may avoid

imprisonment and be placed on probation on the condition that the
defendant pay any combination of fines, costs, damages, or
restitution ordered by the court. The fines, costs, damages, or
restitution must be paid in installments within the time indicated
by the court in its conditional sentence. MCL 769.3(2).
 A defendant who fails to make the payments ordered in a

conditional sentence of probation may be sentenced as provided
by law.
The court has discretion to sentence a defendant as provided by

law (according to the term of imprisonment indicated by the
statute under which the defendant was convicted) if the defendant
defaults on any of the payments ordered. MCL 769.3(2).

8.45 Suspended Sentences

No statute expressly confers on a sentencing court the general authority to *MCL
impose and then suspend all or a portion of a defendant’s sentence.* However, 750.165(4)
(felony non-
the power to suspend sentences “‘has been frequently and constantly support)
exercised by courts of record before and since the adoption of the specifically
Constitution.’” People v Cordell, 309 Mich 585, 594 (1944), quoting People authorizes a
v Stickle, 156 Mich 557, 563 (1909). The power of suspension is an inherent, court to
suspend a
but not unlimited, judicial function; it is subject to any applicable statutory defendant’s
provisions and circumscribed by the executive branch’s exclusive power to sentence if the
commute sentences and grant pardons. Cordell, supra at 594-595; Oakland defendant posts
a bond and any
County Pros v 52nd District Judge, 172 Mich App 557, 560 (1988). sureties
required by the
A court may not suspend a defendant’s sentence once the defendant has begun court.
serving it; a suspension in that case would be the practical equivalent of a
commutation, and only the governor possesses the constitutional authority to
commute a criminal sentence. Oakland County Pros, supra at 559-560.
A sentence that is suspended indefinitely infringes on the powers granted to

the executive and legislative branches of government. People v Morgan, 205
Mich App 432, 434 (1994). An indefinite suspension is not a valid sentence
where a defendant’s conviction was punishable by fine, prison, or probation,
because the sentence is not within the sentencing alternatives defined by the
Legislature in the governing statute. Id. at 433. Similarly, an indefinite
suspension encroaches on the executive branch’s exclusive power to pardon
because an indefinite suspension has the practical effect of permitting a
defendant to commit a crime and avoid punishment. Id. at 434.
8.46 Mandatory Sentences
Where a mandatory determinate term of incarceration is prescribed by the

statute governing a specific offense, the sentencing guidelines do not apply to
that offense, and the court must impose the sentence specified by statute.
MCL 769.34(5). Probation is not authorized for conviction of any offense for
which a mandatory prison sentence is prescribed. Offenses that require
mandatory incarceration should be included in the “exception” expressed in
MCL 771.1(2) (offenses for which probation is not authorized). Appendix G
contains a list of these offenses.
8.47 Special Alternative Incarceration (SAI) Units—“Boot

Camp”
When a defendant is convicted of an offense punishable by incarceration in a

state prison (with the exception of the specific crimes listed in MCL
771.3b(17) and discussed below), a sentencing court may order as a condition
of the defendant’s probation that he or she satisfactorily complete a program

Section 8.47
of incarceration in a special alternative incarceration (SAI) unit. MCL

771.3b(1). SAI units are established and operated by the Department of
Corrections (DOC); among other programming included by the DOC, SAI
units are required to demand of the participants “physically strenuous work
and exercise, patterned after military basic training[.]” MCL 771.3b; MCL
798.13(1); MCL 798.14(1).
A. Eligibility Requirements
Convictions that preclude placement in an SAI unit. Individuals convicted

of committing or attempting to commit any of the offenses listed in MCL
771.3b(17) are not eligible for placement in an SAI program. The listed
offenses are:
• MCL 750.145c, child sexually abusive activity;
• MCL 750.520b, first-degree criminal sexual conduct;
• MCL 750.520c, second-degree criminal sexual conduct;
• MCL 750.520d, third-degree criminal sexual conduct;
• MCL 750.520g, assault with intent to commit criminal sexual

conduct;
• MCL 750.72, arson of a dwelling house;
• MCL 750.73, arson of other real property; and
• MCL 750.75, arson of insured property with intent to defraud

insurer.
Previous participation in an SAI unit generally precludes placement.

With one exception, no person shall be incarcerated in an SAI unit more than
once. MCL 771.3b(15). The single exception to the rule concerns an
individual who is removed from an SAI program and returned to court for
sentencing due to a medical condition that existed at the time the person was
placed in the SAI unit. MCL 771.3b(16). That individual, removed for
medical reasons, may again be placed in an SAI program after the individual’s
medical condition is corrected. Id.
General requirements for placement. MCL 771.3b sets forth the general
eligibility requirements for a defendant’s placement in an SAI program:
• The defendant has never served a prison sentence in a state

correctional facility. MCL 771.3b(2)(a).
• The defendant would likely be sentenced to prison. MCL

771.3b(2)(b).

• The sentencing guidelines as scored for the defendant’s offense

result in an upper limit of the recommended minimum sentence of
12 months or more (this section does not apply if the offense is not
covered by the felony sentencing guidelines or if the person is
being considered for SAI placement because he or she violated
conditions of probation). MCL 771.3b(2)(c). When the upper limit
of a defendant’s recommended minimum sentence range is not 12
months or more and MCL 771.3b(2)(c) applies, a sentencing court
lacks the statutory authority to sentence the defendant to
placement in a SAI program. People v Cooper, 252 Mich App 515,
517 (2002).
• The defendant is physically able to participate in the SAI program.

MCL 771.3b(2)(d).
• The defendant has no apparent mental disability that would

prevent participation in the program. MCL 771.3b(2)(e).
An individual’s eligibility under MCL 771.3b(2)(a) and (b) must be

preliminarily determined by a probation officer. MCL 771.3b(4). Once placed
in an SAI unit, the DOC must determine that the individual satisfies all the
requirements in MCL 771.3b(2). If the DOC finds that the individual is not
eligible for placement, he or she will be returned to court for sentencing. MCL
771.3b(5). If a person is ineligible for placement, the court must rescind that
person’s probation order and sentence him or her as provided by law. Id.
Consent required. A probationer must consent to placement in an SAI

program. MCL 771.3b(6).
B. Post-Placement Considerations
Length of placement. The maximum amount of time a person may be placed

in an SAI program is 120 days. MCL 771.3b(8); MCL 798.14(1). Participants
are required to “make up” for days missed in the program because of illness
or injury. Should a person miss more than five days of participation in the
program because of an illness or injury that occurred after the individual was
placed in the unit, one day is added to the term of his or her placement,
beginning with the sixth day missed. A maximum of 20 days may be added to
an individual’s placement. MCL 771.3b(8).
Residential program. A court may also require an individual placed in an

SAI unit to satisfactorily complete a local residential program offering
vocational training, education, and substance abuse treatment. MCL
771.3b(1). The length of any additional residential treatment program
required by the court shall not exceed 120 days. MCL 771.3b(9); MCL
798.14(1).
Probation under intensive supervision. An individual who satisfactorily

completes an SAI program must be placed on probation, under intensive

Section 8.47
supervision, for a minimum of 120 days following completion of the SAI

program. MCL 771.3b(12); MCL 798.14(1).
*DOC must DOC report. The court must authorize the probationer’s release from
certify its report incarceration in an SAI program when it receives notice from the DOC*
to the
sentencing
indicating the probationer’s satisfactory performance in the program. MCL
court not less 771.3b(13). An unsatisfactory report is a violation of the terms and conditions
than five days of an individual’s probation and shall be grounds for revocation of probation.
before the Id.
expected date
of release. MCL
798.15(1). Probationer’s conduct during placement. The DOC has discretion to report
to the sentencing court a probationer’s failure to obey the rules of behavior or
to work diligently and productively at the SAI program. MCL 798.16(1).
Rather than remaining in the SAI unit, a probationer may be incarcerated in a
county jail while he or she awaits a probation revocation hearing on his or her
failure to perform satisfactorily in the SAI program. Id.
A probationer is entitled to credit for time spent in an SAI program if later his
or her probation is revoked and he or she is sentenced to a term of
imprisonment on the underlying crime. People v Hite (After Remand), 200
Mich App 1, 2 (1993).
C. Placement in an SAI Program After a Sentence of

Imprisonment
Once a defendant is sentenced to prison and under the DOC’s jurisdiction, the
DOC is required to consider placing a prisoner serving an indeterminate
sentence in an SAI program unless the sentencing court prohibited such a
placement. MCL 791.234a(1), (2)(f), and (4). The DOC must determine
whether a defendant within its jurisdiction and sentenced to an indeterminate
term is eligible for placement in an SAI program according to the
requirements in MCL 791.234a(2) and (3).
A defendant is not eligible for placement in an SAI program if, in the

judgment of sentence, the sentencing judge prohibited the defendant’s
participation in such a program. MCL 791.234a(2)(f) and (4). When a
judgment of sentence does not indicate the sentencing court’s intention with
regard to a defendant’s placement in an SAI unit, the defendant may not be
placed in such a program until the DOC complies with the requirements in
MCL 791.234a(4):
• The DOC determines that the prisoner meets eligibility

requirements in MCL 791.234a(2) and (3).
• The DOC notifies the judge (or the judge’s successor), the
prosecuting attorney in the county where the defendant was
sentenced, and any victim of the crime committed who has
requested notification of the proposed placement not later than 30
days before the placement would occur.

• The sentencing judge (or the judge’s successor) notifies the DOC *The judge
in writing that he or she has no objection to the defendant’s must review any
victim impact
placement in an SAI program.* statements
submitted by
• The prosecution’s approval is not necessary for a defendant’s victims of the
placement in an SAI program. The prosecution waives any crime before
objection to a defendant’s placement in an SAI unit if it does not making this
decision.
raise the issue at the defendant’s sentencing hearing. People v
Krim, 220 Mich App 314, 320-321 (1997).
Notice to crime victims required. When requested in writing by a crime

victim, the Crime Victim’s Rights Act requires that notice of a defendant’s
prospective SAI placement be given to that victim. MCL 780.763a(3) states:
“If the department of corrections determines that a defendant who

was, in the defendant’s judgment of sentence, not prohibited from
being or permitted to be placed in the special alternative
incarceration unit established under . . . MCL 798.13, meets the
eligibility requirements of . . . MCL 791.234a, the department of
corrections shall notify the victim, if the victim has submitted a
written request for notification under [MCL 780.769], of the
proposed placement of the defendant in the special alternative
incarceration unit not later than 30 days before placement is
intended to occur. In making the decision on whether or not to
object to the placement of the defendant in a special alternative
incarceration unit as required by . . . MCL 791.234a, the
sentencing judge or the judge’s successor shall review an impact
statement submitted by the victim under [MCL 780.764].”

Section 8.48
Part IX—Sentence Departures

For felony convictions listed in MCL 777.11 through MCL 777.19 that occur
on or after January 1, 1999, the statutory sentencing guidelines require a
sentencing court to impose a minimum sentence within the appropriate
sentence range, as calculated under the version of the guidelines in effect at
the time the crime was committed. MCL 769.34(2). A “departure” is a
sentence that does not fall within the minimum sentence range calculated
under the guidelines. MCL 769.31(a). Notably, the Legislature made no
distinction between upward and downward departures. People v Hegwood,
465 Mich 432, 440 n 16 (2001). Sections 8.49 and 8.50, below, distinguish
between upward and downward departures for the purpose of discussing
factors considered by a sentencing court in determining whether to depart
from the guidelines. A court’s discretion with regard to departures is limited
by the provisions in MCL 769.34(3)(a) and (b), which are discussed in Section
8.48, below.
8.48 Requirements of a Sentence Departure
Sentence departures are governed by the language in MCL 769.34(3), which

permits a court to depart from the range recommended by the guidelines if
there is a substantial and compelling reason for that departure, and the court
articulates that reason on the record. People v Babcock, 469 Mich 247, 271
(2003). Of critical importance is the trial court’s statement (on the record)
concerning how the substantial and compelling reason justifies the degree of
departure chosen by the court. Babcock, supra at 258–259; People v Claypool,
470 Mich 715, 726-727 (2004); People v Johnigan, 265 Mich App 463, 468-
469 (2005); People v Hornsby, 251 Mich App 462, 474 (2002).
The trial court abused its discretion when it sentenced a defendant to twice the
highest minimum term recommended under the sentencing guidelines without
justifying the extent of the departure on the record. People v Smith, 482 Mich
292, 295 (2008). The Michigan Supreme Court concluded that providing
substantial and compelling reasons for a departure does not satisfy the trial
court’s duty to “establish why the sentences imposed were proportionate to
the offense and the offender.” Id. The Court further explained that “the
statutory guidelines require more than an articulation of reasons for a
departure; they require justification for the particular departure made.” Id. at
303.
The Michigan Supreme Court set out the following summary to assist trial
courts in fulfilling their statutory obligations under MCL 769.34(3):
“(1) The trial court bears the burden of articulating the rationale
for the departure it made. A reviewing court may not substitute its
own reasons for departure. Nor may it speculate about conceivable
reasons for departure that the trial court did not articulate or that
cannot reasonably be inferred from what the trial court articulated.
“(2) The trial court must articulate one or more substantial and
compelling reasons that justify the departure it made and not
simply any departure it might have made.
“(3) The trial court’s articulation of reasons for the departure must
be sufficient to allow adequate appellate review.
“(4) The minimum sentence imposed must be proportionate. That

is, the sentence must adequately account for the gravity of the
offense and any relevant characteristics of the offender. To be
proportionate, a minimum sentence that exceeds the guidelines
recommendation must be more appropriate to the offense and the
offender than a sentence within the guidelines range would have
been.
“(5) When fashioning a proportionate minimum sentence that

exceeds the guidelines recommendation, a trial court must justify
why it chose the particular degree of departure. The court must
explain why the substantial and compelling reason or reasons
articulated justify the minimum sentence imposed.
“(6) It is appropriate to justify the proportionality of a departure by

comparing it against the sentencing grid and anchoring it in the
Section 8.48
sentencing guidelines. The trial court should explain why the

substantial and compelling reasons supporting the departure are
similar to conduct that would produce a guidelines-range sentence
of the same length as the departure sentence.
“(7) Departures from the guidelines recommendation cannot be

assessed with mathematical precision. The trial court must comply
reasonably with its obligations under the guidelines . . . to further
the legislative goal of sentencing uniformity.” Smith, supra at 317-
319.
A. Substantial and Compelling Reason
According to the Michigan Supreme Court, the phrase “substantial and

compelling” has acquired a “peculiar and appropriate meaning in the law” and
must be construed in a manner that is consistent with that meaning. Babcock,
supra at 257. A reason is substantial and compelling if it is “objective and
verifiable,” if it “keenly” or “irresistibly” grabs a court’s attention, if it is “of
considerable worth” in deciding the length of a sentence, and if it arises only
in “exceptional” cases. Id. at 257-258.
However, a trial court’s determination that a defendant’s “repeated

perpetration of vicious acts against his wife within a short time period was a
‘particularly aggravating,’ ‘particularly compelling,’ and ‘staggering’ factor”
was objective and verifiable and constituted a substantial and compelling
reason for the trial court’s upward departure from the minimum sentence
recommended by the statutory guidelines. People v Horn, 279 Mich App 31,
46 (2008). The Court of Appeals noted that the “[d]efendant’s determined
course to terrorize and abuse his wife, clearly evident from the recurring and
escalating acts of violence, [wa]s an objective and verifiable reason . . . based
on occurrences external to the sentencing judge’s mind, and capable of being
confirmed.” Id.
A defendant’s punctuality in reporting to the court cannot serve as a

substantial and compelling reason for departure because it does not “keenly”
or “irresistibly” grab a court’s attention. People v Young, 276 Mich App 446,
458 (2007).
A reason is objective and verifiable if it is based on facts or events that are

external to the minds of the parties involved, particularly the mind of the trial
judge. People v Abramski, 257 Mich App 71, 74 (2003). An objective and
verifiable statement or factor is a statement or factor capable of confirmation.
Id. In People v Thompson, unpublished opinion per curiam of the Court of
Appeals, decided January 20, 2005 (Docket No. 251322), the trial court
improperly departed from the guidelines on the basis of the court’s conclusion
that the defendant found the case “terribly amusing,” as evidenced by the
defendant’s laughter and gestures at trial. Said the Court of Appeals, “The
determination of whether a person finds something amusing is not external to

the mind of the trial judge. It is an internal evaluation not capable of external
proof.” Id.
That a defendant presents a danger to him- or herself and the public is not an
objective and verifiable factor and cannot itself be a trial court’s substantial
and compelling reason for departure. People v Solmonson, 261 Mich App 657,
670 (2004).
A trial court’s characterization of the defendant’s offenses as “egregious” is

not an objective and verifiable determination that may be used as a substantial
and compelling reason to depart from the statutory guidelines. People v
Havens, 268 Mich App 15, 18 (2005).
However, a trial court’s determination that a defendant’s “repeated

perpetration of vicious acts against his wife within a short time period was a
‘particularly aggravating,’ ‘particularly compelling,’ and ‘staggering’ factor”
was objective and verifiable and constituted a substantial and compelling
reason for the trial court’s upward departure from the minimum sentence
recommended by the statutory guidelines. People v Horn, 279 Mich App 31,
46 (2008). The Court of Appeals noted that the “[d]efendant’s determined
course to terrorize and abuse his wife, clearly evident from the recurring and
escalating acts of violence, [wa]s an objective and verifiable reason . . . based
on occurrences external to the trial court’s mind, and capable of being
confirmed.” Id.
A defendant’s cooperation with his attorney and his respectful conduct in the
courtroom are not objective and verifiable factors and may not serve as
substantial and compelling reasons for departure. People v Young, 276 Mich
App 446, 458 (2007).
“Proportionality”* is still a component of sentencing under the statutory *See Section

guidelines. Babcock, supra at 262. When deciding whether and to what degree 8.29 for a
detailed
to depart from the recommended sentence, a trial court “must consider discussion of
whether its sentence is proportionate to the seriousness of the defendant’s proportionality.
conduct and his [or her] criminal history[.]” Id. at 264. A departure that is
disproportionate to the circumstances of the offense or the offender cannot be
justified no matter what “reasons” are advanced in support of the departure.
Id.
There is likely no single correct outcome in cases where a departure from the
guidelines is considered and imposed. However, a departure must fall within
“the principled range of outcomes.” Babcock, supra at 269; People v Reincke
(On Remand), 261 Mich App 264, 268 (2004). As long as the trial court
chooses a sentence departure within that principled range of outcomes, the
court has properly exercised its discretion. Reincke, supra at 268. In Reincke,
the trial court imposed a sentence that exceeded by more than four times the
minimum sentence recommended under the guidelines—the guidelines
recommended a minimum of 81 to 135 months and the court imposed a
minimum of 360 months. Id. at 265. The Reincke Court concluded that the

Section 8.48
trial court’s extreme departure from the range recommended under the
guidelines was justified by the “incomprehensible brutality” of the crime. Id.
at 269 (three-year-old child penetrated with such force that the tissue between
the child’s rectum and vaginal wall was torn to the point of being
unidentifiable and required major reconstructive surgery).
*Sentencing An upward departure requires that the trial court, at sentencing,* advise the
hearings are defendant of his or her appellate rights regarding the sentence departure. MCR
discussed in
detail in
6.425(F)(4) states:
Sections 8.18–
8.25. “When imposing sentence in a case in which sentencing guidelines
enacted in 1998 PA 317, MCL 777.1 et seq.[parallel citation
omitted], are applicable, if the court imposes a minimum sentence
that is longer or more severe than the range provided by the
sentencing guidelines, the court must advise the defendant on the
record and in writing that the defendant may seek appellate review
of the sentence, by right if the conviction followed trial or by
application if the conviction entered by plea, on the ground that it
is longer or more severe than the range provided by the sentencing
guidelines.”
B. Statutory Prohibitions
In addition to the requirement that the trial court articulate a substantial and
compelling reason for departing from the guidelines, the statutory sentencing
guidelines expressly prohibit a sentencing court from basing a departure on
specific characteristics of the defendant and his or her defense. MCL
769.34(3)(a) states:
“The court shall not use an individual’s gender, race, ethnicity,

alienage, national origin, legal occupation, lack of employment,
representation by appointed legal counsel, representation by
retained legal counsel, appearance in propria persona, or religion
to depart from the appropriate sentence range.”
Unless the court concludes that a factor has been given disproportionate or
inadequate weight, the guidelines also expressly prohibit a court from basing
a sentence departure on a characteristic of the offense or the offender
addressed by the variables (OVs and PRVs). MCL 769.34(3)(b) states:
“The court shall not base a departure on an offense characteristic

[OV] or offender characteristic [PRV] already taken into account
in determining the appropriate sentence range unless the court
finds from the facts contained in the court record, including the
presentence investigation report, that the characteristic has been
given inadequate or disproportionate weight.”
Because points are assessed in each OV and PRV according to the applicable
statement having the highest number of points and because each variable
consists of a finite number of somewhat “generic” statements, the guidelines

necessarily cannot account for the unique circumstances of specific offenses
and offenders. The “all or nothing” characteristic of some of the variables
further limits the guidelines from accurately accounting for circumstances of
an offense not precisely described by the choices available under each
variable. For example, OV 7 addresses the aggravated physical abuse
component of an offense and allows for only two choices. MCL 777.37. Fifty
points must be scored if a victim was subject to treatment characterized as
aggravated physical abuse under OV 7, or zero points must be scored if a
victim was not subject to such abuse. MCL 777.37(1). OV 7 cannot account
for a victim’s treatment that falls somewhere in between, or well beyond, the
two choices offered by OV 7.
The Babcock Court provided this guidance for determining when a

characteristic of the offense or the offender is already adequately measured by
an OV or a PRV:
“[I]f a defendant convicted of armed robbery is scored 25 points

under offense variable one because he stabbed his victim, see
MCL 777.31, that the defendant stabbed his victim probably could
not constitute a substantial and compelling reason to justify a
departure because the Legislature has already determined what
effect should be given to the fact that a defendant has stabbed his
victim and the courts must abide by this determination. However,
if the defendant stabbed his victim multiple times, or in a manner
designed to inflict maximum harm, that might constitute a
substantial and compelling reason for a departure because these
characteristics may have been given inadequate weight in
determining the guidelines range.” Babcock, supra at 258 n 12.
A trial court’s upward departure based on the defendant’s extensive criminal *Conduct
history was appropriate even where the PRVs “partially accounted for” the scored under
OV 19 was also
defendant’s prior convictions. People v Deline, 254 Mich App 595, 598 at issue, and
(2003), vacated in part on other grounds 470 Mich 895 (2004).* The Deline the Deline
Court explained: Court’s
interpretation of
OV 19 was
“[The defendant’s PRV] scoring did not account for the number or disapproved in
extent of [the defendant’s prior] offenses. Other factors not People v
accounted for in the guidelines scoring indicate that defendant is Barbee, 470
Mich 283, 287-
unwilling or unable to accept responsibility for his actions or make 288 (2004). See
the changes needed to protect the public from further driving Section 8.6(T)
offenses by him. For example, he was on probation for drunken for discussion of
driving at the time of his offense, he had a blood-alcohol level far OV 19.
in excess of the legal limit, he was driving although his license had
been suspended, and he has been sentenced to jail for numerous
drunken driving offenses.” Deline, supra at 598-599.
Where OV 7 assessed a maximum of 50 points for an offender’s excessively

brutal or sadistic treatment of a victim on a single occasion, a trial court did

Section 8.49
not abuse its discretion when it based an upward departure on the variable’s
failure to adequately account for the defendant’s brutal or sadistic treatment
of the victim on 18 separate occasions. People v Cline, 276 Mich App 634,
652-653 (2007). Similarly, the trial court’s sentence departure was
appropriate for OV 13’s failure to adequately account for the defendant’s
continuing pattern of criminal behavior when the variable assesses the same
25 points without regard to whether a defendant committed three crimes
against a person or 18 crimes against a person, as the defendant did in this
case. Id.
The trial court did not err in departing upward from the guidelines based on
the defendant’s repetitive and escalating violent conduct toward a specific
victim where OV 7 (aggravated physical abuse), OV 13 (continuing pattern of
criminal behavior), or any of the prior record variables did not adequately
account for the “defendant’s repeated criminal assaults upon his wife and his
relentless attempts to brutalize and kill his wife.” People v Horn, 279 Mich
App 31, 47-48 (2008).
A trial court’s determination that the guidelines gave inadequate or

disproportionate weight to a factor need not be expressly stated—the court’s
determination may be implied from the record. People v Lowery, 258 Mich
App 167, 170 (2003). In People v Tolbert, unpublished opinion per curiam of
the Court of Appeals, decided February 12, 2004 (Docket No. 243039), the
Court cited Lowery and upheld a trial court’s departure where the trial court
did not directly explain how the guidelines failed to adequately account for the
circumstances of the offense that prompted the court’s departure. The Court
affirmed the defendant’s sentence and found that at least three of the trial
court’s statements constituted its implicit declaration that it departed because
the guidelines failed to adequately measure the circumstances of the
defendant’s offense. The trial court noted that: (1) the defendant’s conduct
was “one of the most heinous crimes” the court had seen during its judicial
tenure; (2) the defendant’s assault on the victim was “merciless”—the
defendant ignored the victim’s pleas to stop, continued hitting and kicking
her, and her injuries required a two-week hospitalization; and (3) the victim
was the defendant’s own mother and the guidelines did not anticipate the
familial relationship present in this particular violent crime. Tolbert, supra.
Said the Tolbert Court:
“After describing the salient features of the assault, the [trial] court
stated that ‘the guidelines don’t justify your punishment in this
particular case.’ We find this statement sufficient to indicate that
the court found that the statutory factors were given inadequate
weight.” Id.
8.49 Downward Departures
Factors appropriately considered in determining whether to depart downward

from the range recommended by the guidelines include: (1) any mitigating
circumstances of the offense; (2) the defendant’s previous criminal record; (3)
the defendant’s age; (4) the defendant’s employment history; and (5) any
relevant post-arrest events such as the defendant’s cooperation with the
police. People v Daniel, 462 Mich 1, 7 (2000), relying on People v Fields, 448
Mich 58 (1995).
See People v Young, 276 Mich App 446, 449-458 (2007) (addressing all of the
factors specified by the Court in People v Fields, 448 Mich 58 (1995), as
appropriate for a sentencing court to consider in deciding whether to depart
downward from the recommended sentencing range).
Work history. A defendant’s stable and long-term work history may

constitute a substantial and compelling reason for a trial court’s downward
departure; work history may be a predictor of a defendant’s rehabilitative
potential. Daniel, supra at 7 n 8; People v Shinholster, 196 Mich App 531, 535
(1992). Employment at a job less than two years is not considered long-term
employment. People v Claypool, 470 Mich 715, 727 (2004).
Education. Pursuit of a post-secondary education may also be a factor

considered in a trial court’s departure from the sentencing guidelines. People
v Perry, 216 Mich App 277, 280, 282 (1996).
Guidelines range versus mandatory minimum. If a crime is scored under

the guidelines and results in a lesser minimum sentence than the mandatory
minimum term contained in the penal statute under which a defendant was
convicted, the guidelines range does not itself constitute a substantial and
compelling reason for departing from the mandatory minimum. People v
Izarraras-Placante, 246 Mich App 490, 498 (2001). Only when—
independent of the guidelines range—a substantial and compelling reason to
depart from a statutory mandatory minimum exists may a trial court properly
look to the minimum range recommended by the guidelines in order to fashion
a sentence more proportionate to the offense and the offender. Id. at 498-499.
Family support. The supportive presence of a defendant’s family during the

proceedings against the defendant is an objective and verifiable fact that may
support a departure. People v Lewis, unpublished opinion per curiam of the
Court of Appeals, decided March 15, 2005 (Docket No. 251635). See also
Fields, supra at 78, and People v Harvey, 203 Mich App 445, 448 (1994).
Minimal criminal history. The fact that the defendant at the age of 26 had
only one previous misdemeanor conviction is not a substantial and compelling
reason for departure. Claypool, supra at 727.
8.50 Upward Departures
The following factors have been addressed by Michigan’s appellate courts

when reviewing a trial court’s departure from the guidelines:

Section 8.50
A. Factors Related to a Victim of the Offense
Identity of the victim. A defendant’s “complete disregard” for a law

enforcement officer’s life is not adequately accounted for by the guidelines
and may constitute a substantial and compelling reason for departure. People
v Thomas, 263 Mich App 70, 79 (2004).
Identity of the victims involved in a defendant’s repeated criminal

conduct. A “defendant’s past criminal history of sex crimes with children, his
admitted sexual attraction to children, and his repeated failure to rehabilitate
himself when given the opportunity” are objective and verifiable factors in
support of a trial court’s substantial and compelling reason to depart from the
guidelines. People v Geno, 261 Mich App 624, 636 (2004).
Violent conduct repeatedly directed at the same individual. In engaging in

an upward departure, a sentencing court may consider “an actual, established,
pattern and practice of repeatedly victimizing a targeted individual.” People v
Horn, 279 Mich App 31, 33 (2008).
Effect of the offense on the victim. A departure may be justified where the
guidelines “do not take into account the violation of the victim’s parents’ trust
in defendant, the effect on the family occasioned by the victim’s loss of trust
in all men, including his own father, or the effect on the victim and his sister
from having to learn about sexual matters at such a young age.” People v
Armstrong, 247 Mich App 423, 425-426 (2001).
Relationship to the defendant and the severity of the victim’s physical

injury. The degree of physical injury sustained by a victim may constitute a
substantial and compelling reason for departure when the degree of brutality
was not adequately accounted for by the guidelines. “Where a defendant’s
actions [we]re so egregious that standard guidelines scoring methods simply
fail[ed] to reflect their severity,” the Court of Appeals affirmed a trial court’s
upward departure from the sentence recommended under the judicial
guidelines then in effect. People v Granderson, 212 Mich App 673, 680
(1995). The Court explained:
“Defendant severely beat an elderly woman who was a near

invalid, breaking her nose and arm, and then repeatedly stabbed
and shot her. His actions are rendered more appalling by the fact
that he committed these acts against a woman who trusted him and
who had previously hired him to perform odd jobs around her
house. Must a reasonable court conclude that these circumstances
are adequately accounted for by the relevant robbery offense
variables, such as offense variable (OV) 1, ‘A firearm is
discharged by offender during commission of the offense,’ or OV
2, ‘Victim killed’? The answer is obvious. We wholeheartedly
agree with the sentencing court in finding that the circumstances
of the present crime were not adequately reflected in the offense
variables.” Id. at 680-681.
See also People v Reincke (On Remand), 261 Mich App 264, 269-270 (2004).
Ethnicity of the victim. The ethnicity of a defendant’s victims is not a factor

already taken into account by the guidelines and may provide a sufficient
substantial and compelling reason for departure under specific circumstances.
People v Phung, unpublished opinion per curiam of the Court of Appeals,
decided June 12, 2003 (Docket No. 239098), aff’d sub nom Phung v Bell by
the United States District Court for the Eastern District of Michigan, May 4,
2005 (No. 04-CV-73582-DT). In Phung, the trial court departed from the
guidelines “because of the ethnic nature of th[e] crime and the selection of
victims due to ethnicity.” Id.
Age and identity of victims. A departure may be justified where OV 9 does

not adequately reflect the egregious circumstances of the offense. OV 9
reflects only the number of victims; “[i]t does not consider the age of the
victims or the fact that defendant was willing to forego the lives of his own
children in this plot.” People v Keane, unpublished opinion per curiam of the
A trial court’s upward departure was appropriate where evidence showed that
the “defendant performed sexual acts, including forced fellatio, on
defenseless four- and five-year-old children, including his own son.” People
v Kahley, 277 Mich App 182, 190 (2007). The Court explained that although
the guidelines address psychological injury (MCL 777.34) and exploitation of
vulnerable victims on the basis of youth (MCL 777.40), those provisions were
“simply inadequate to address the abhorrent nature of the crimes committed
by [the] defendant.” Kahley, supra at 190-191.
See also People v Lalone, unpublished opinion per curiam of the Court of
Appeals, decided May 5, 2005 (Docket No. 251326) (the Court commented
on the fact that for first-degree CSC, the guidelines do not distinguish between
a five-year-old victim and a 12-year-old victim).
Unusual consequences to a victim of the offense. The Court of Appeals held

that a 35-month departure from the guidelines was justified where the trial
court based its departure on the victim’s—and the victim’s family’s—
exposure to the defendant’s sexually transmitted disease and “the
consequences of such a disease on a young victim.” People v Castro-
Isaquirre, unpublished opinion per curiam of the Court of Appeals, decided
April 6, 2004 (Docket No. 242134).
B. Factors Involving the Offender
Repeat violent offenders and community protection. A trial court’s upward

departure was proper where the defendant committed the sentencing offense
shortly after his release from a 15-year sentence for a criminal episode that
involved robbery, kidnapping, and sexual assault. People v Hicks, 259 Mich
App 518, 535-536 (2003). The sentencing court further explained the
departure by noting that the guidelines did not account for the fact that the
Section 8.50
defendant received 34 misconduct tickets during his previous incarceration

and that the conduct precipitating both convictions was predatory conduct
from which the community ought to be protected. Id.
Credible prediction of the defendant’s future conduct. It appears that a

departure may be based on a trial court’s prediction of the defendant’s future
conduct when credible evidence of the defendant’s past conduct supports such
a prediction. In People v Castillo, unpublished opinion per curiam of the
Court of Appeals, decided February 17, 2004 (Docket No. 243330), the trial
court explained its departure was prompted by the conclusion that “societal
protection necessitated a longer sentence because defendant would continue
to commit violent crimes given his ongoing drinking problem.” The trial court
emphasized that the defendant had nine prior felonies including two
homicides and two assaults with the intent to cause great bodily harm and that
the defendant’s PRV score was 50 points more than the 75-point maximum.
Id. Although mere speculation about a defendant’s propensity for future
criminal conduct is insufficient to support a departure, the Court concluded
that the trial court’s prediction of the defendant’s future behavior was based
on objective and verifiable factors that constituted a substantial and
compelling reason for departure. Id.
“[S]pecific characteristics of an offense and an offender that strongly presage

future criminal acts may justify an upward departure from the recommended
sentencing range if they are objective and verifiable, and if they are not
already adequately contemplated by the guidelines. Although a trial court’s
mere opinion or speculation about a defendant’s general criminal propensity
is not, in itself, an objective and verifiable factor, objective and verifiable
factors underlying that conclusion or judgment are not categorically excluded
as proper reasons for an upward departure. People v Horn, 279 Mich App 31,
45 (2008). In Horn, supra, the trial court departed upward from the
recommended guidelines range based on its conclusion that the particular
danger the defendant presented to his wife justified an increased sentence
because the danger was clear from the defendant’s pattern of extreme violence
against his wife, and the sentencing guidelines did not take into consideration
the defendant’s determined course of targeting a specific victim. Id. at 44. In
affirming the trial court, the Court of Appeals noted that “the trial court did
not err in finding that [the] defendant’s repeated criminal assaults upon his
wife and his relentless attempts to brutalize and kill his wife presage future
violence and aggression.” Id. at 47. The Court further noted: “An individual’s
established pattern of predatory conduct toward a selected victim clearly
constitutes probative evidence of future behavior toward that victim.
Accordingly, anticipatory harm based on an established pattern of violence
toward a specific victim is an objective and verifiable factor, not a speculative
prediction.” Id. at 47-48.
A trial court’s conclusion that the defendant was a pedophile who was likely
to repeat his conduct and whose condition was not amenable to treatment was
based on facts external to the mind of the court and supported by experts in
the area of psychiatry. People v Kahley, 277 Mich App 182, 188-190 (2007).

See also People v Solmonson, 261 Mich App 657, 671 (2004), where the trial
court properly based its departure on the defendant’s continued criminal
conduct despite multiple prior sentences for the same conduct (probation, jail,
and prison for drinking and driving offenses).
Failure to admit guilt or show remorse. A trial court cannot impose a longer
sentence on a defendant based on the defendant’s failure to admit his or her
guilt. The Fifth Amendment protects a criminal defendant from compelled
self-incrimination at all judicial proceedings, including sentencing hearings.
Ketchings v Jackson, 365 F3d 509, 512 (CA 6, 2004).
Pattern of previous convictions. A pattern of recidivist behavior is a factor

not accounted for by the sentencing guidelines and is an objective and
verifiable consideration capable of confirmation by a defendant’s prior
criminal record. People v Brown, unpublished opinion per curiam of the Court
of Appeals, decided December 28, 2004 (Docket No. 249863). In Brown, the
defendant’s sentencing offense was his fifth drunk driving violation and the
seventh time he was convicted of driving while his license was suspended.
The Court of Appeals stated, “[W]hile the guidelines designate points for
prior misdemeanors that impact the statutory minimum sentence range, the
guidelines do not delve deeper to consider whether the misdemeanors fit a
pattern of recidivist behavior.” Id.
See also People v Wade, unpublished opinion per curiam of the Court of
Appeals, decided January 25, 2005 (Docket No. 249269) (departure was
justified where the court determined that the defendant was not amenable to
rehabilitation; the defendant committed two assaults within three months of
his release from a 15-year prison sentence, and within one month of his
release from prison for those two assaults, the defendant committed the two
assaults for which he was being sentenced).
Excessive prior convictions and adjudications. An upward departure may

be justified where a defendant’s prior felonies and felony juvenile
adjudications greatly exceed the maximum number scored under the
guidelines. People v Annabel, unpublished opinion per curiam of the Court of
Appeals, decided September 30, 2004 (Docket No. 249238) (the defendant
had eight previous adult felonies—the guidelines account for “4 or more,” the
defendant had ten previous felony juvenile adjudications—the guidelines
account for “3 or more,” the defendant’s felony convictions occurred in four
different states, and the defendant was only 22 years of age).
See also Lalone, supra, where the three victims described “‘a dozen or more’
incidents of sexual abuse” and OV 13 accounts for only three or more.
Type and severity of prior convictions not accounted for by PRVs. A trial
court did not abuse its discretion when it departed from the guidelines because
PRVs 1 and 7 failed to adequately reflect the circumstances of the offense and
the offender. People v Thomas, unpublished opinion per curiam of the Court
of Appeals, decided October 12, 2004 (Docket No. 248097). For example,

Section 8.50
although PRV 7 accounted for the defendant’s subsequent felony conviction,

it did not reflect that the felony was for first-degree murder, and while PRV 1
accounted for the defendant’s previous conviction in which a death occurred,
it did not reflect the defendant’s history of shooting offenses. Thomas, supra.
A defendant’s prior conviction in a foreign state—not one of the United

States—is not properly counted under any of the prior record variables;
therefore, under appropriate circumstances and subject to the requirements in
People v Babcock, 469 Mich 247 (2003), a foreign conviction may constitute
a substantial and compelling reason for departure from the guidelines range.
People v Price, 477 Mich 1, 5-6 (2006).
Parole absconder status. That a defendant has absconded from parole is not
reflected in the guidelines and may be a factor used to justify a departure.
People v Nichols, unpublished opinion per curiam of the Court of Appeals,
Absconding on bond. A trial court’s departure from the guidelines for a

defendant convicted by plea of attempted absconding or forfeiting bond
(MCL 750.199a) was justified because the “defendant’s flight to another state
and assumption of a new identity . . . went beyond that of the average
absconder.” People v Kohns, unpublished opinion per curiam of the Court of
Appeals, decided April 12, 2005 (Docket No. 251327).
Other relevant information about a defendant’s status at the time of the

offense. Departure may be justified where the trial court determined that PRV
6 was given inadequate weight because, although PRV 6 accounted for the
defendant’s probationary status at the time of the offense, it did not reflect
“the short time [the defendant] was on probation before lapsing back into
criminal activity.” People v Ossowski, unpublished opinion per curiam of the
Perjury. That a defendant perjured himself at trial may be an objective and

verifiable reason for departure where the defendant admitted at sentencing
that he lied to the jury and that he committed the offenses. People v Kahley,
277 Mich App 182, 188 (2007). The Court recognized, however, that a
defendant’s perjured testimony is not always an objective and verifiable factor
capable of supporting a sentence departure. Id. According to the Kahley
Court, “whether a person perjured himself or herself at trial may on some
occasions be a subjective conclusion, i.e., an internal belief that the person
was lying without firm confirmation.” Id. The Court further noted that a
defendant’s objective and verifiable commission of perjury alone “would be
insufficient to constitute a substantial and compelling reason for departure
from the guidelines; otherwise, a departure might be warranted every time a
defendant testified and was found guilty.” Id.

C. Factors Involving the Sentencing Offense
Dismissed or uncharged criminal conduct. A trial court may depart from

the guidelines based on the prosecutor’s dismissal of a more serious charge (as
well as the fact that other criminal conduct occurred with which the defendant
was never charged) in exchange for the defendant’s plea to a lesser charge.
Armstrong, supra at 426.
Specific method and cause of a victim’s injury. A departure may be

supported by the guidelines’ failure to account for a very specific
consequence of criminal conduct not precisely described in the individual
OVs or PRVs. In People v Lowery, 258 Mich App 167 (2003), the Court
approved of the trial court’s upward departure from the recommended
minimum because no offense variable or combination of variables adequately
accounted for the fact that the defendant used a firearm to shoot the victim,
the victim was actually shot, and the victim’s injuries resulted from being
shot. Id. at 171.
See also People v Castillo, 230 Mich App 442, 448 (1998), a case decided
under the judicial guidelines, where a trial court’s departure was appropriate
where OV 7 did not adequately address “the attack-from-behind nature of the
crime.” In Castillo, OV 7 assessed the offender’s exploitation of a victim’s
vulnerability, but the trial court properly concluded that OV 7 did not include
the “launching of a surprise attack” in its list of applicable statements for
which points could be assessed against an offender. Id. at 448-449.
Police misconduct. Police misconduct, alone, is generally not a factor

appropriate for consideration at sentencing primarily because it does not
educate a court about the defendant, a component of the sentencing process
that is central to the goal of individualized sentencing. People v Claypool, 470
Mich 715, 718, 725-726 (2004). Under certain circumstances, however,
police conduct may factor into a court’s sentencing decision. In light of its
decision in Babcock, supra, the Claypool Court explained:
“[I]f it can be objectively and verifiably shown that police conduct

or some other precipitating cause altered a defendant’s intent, that
altered intent can be considered by the sentencing judge as a
ground for a downward sentence departure.” Claypool, supra at
718.
In any case, where a trial court concludes that a departure is warranted

because of police misconduct, the court must articulate how that misconduct
(escalation of the crime, for example) constitutes a substantial and compelling
reason justifying the departure. Id. at 726-727.
Peculiar circumstances of the offense or the offender. In People v Evans,

unpublished opinion per curiam of the Court of Appeals, decided March 18,
2004 (Docket No. 240357), the Court concluded that even though PRV 7 and
OV 13 reflected the defendant’s subsequent or concurrent convictions and
Section 8.51
pattern of criminal conduct, the trial court’s departure was justified because
the guidelines failed to
“take into consideration that this is the second time he’s done it,
under similar circumstances, with the same shotgun. The fact that
defendant committed two murders, under similar circumstances,
i.e., in both cases the evidence established that defendant shot
multiple times from a shotgun at close range and that he killed two
people he did not know, is such a situation which ‘keenly’ or
‘irresistibly’ grabs our attention.” Id.
OVs cannot measure the context of the offense in its entirety. The
guidelines were inadequate when, although the guidelines accounted for the
number of victims injured or killed as a consequence of the defendant’s
conduct, they did not adequately account for “the nature of dangers” presented
by the defendant’s conduct. People v Staffney, unpublished opinion per
curiam of the Court of Appeals, decided March 23, 2004 (Docket No.
244516). In Staffney, the defendant lost control of his car, ran up on a lawn,
and struck three people, two of whom died, but the guidelines could not
account for the fact that the “[d]efendant led police on a chase at 80 to 90
miles per hour in a residential area, placing many other residents and police
officers at risk.” Id. See also People v Jackson, unpublished opinion per
curiam of the Court of Appeals, decided March 15, 2005 (Docket No.
253115).
Aggregating specific factors of an offense. In a case where the defendant

repeatedly accelerated as he drove toward a crowd of people, stopped and
backed the vehicle up, and then sped toward the crowd again, ultimately
striking and killing one individual, the Court of Appeals affirmed the trial
court’s departure based on the offense characteristics just described. People v
Brunas, unpublished opinion per curiam of the Court of Appeals, decided
January 25, 2005 (Docket No. 252926). The trial court explained the reasons
for its departure as the numerous assaults with which the defendant was never
charged (the repeated speedy approaches toward the crowd of people), the
defendant’s repeated and reckless use of his motor vehicle that resulted in a
person’s death, the defendant’s use of a motor vehicle as a lethal weapon, and
the defendant’s failure to improve his driving conduct after several past traffic
transgressions. Id.
8.51 Exceptions: When a Departure Is Not a Departure
The sentencing guidelines expressly describe situations in which a trial

court’s departure from the minimum sentence recommended under the
guidelines is not a departure.
Mandatory minimum sentences. Where a statute requires a court to impose

a mandatory minimum sentence, the court must impose that sentence without

regard to the guidelines recommendation. MCL 769.34(2)(a). Imposing the

mandatory minimum under those circumstances is not a departure. Id.
Where a statute requires a sentencing court to impose a mandatory minimum

sentence and also authorizes the court to depart from that mandatory
minimum, it is not a departure if the court imposes a sentence that exceeds the
range recommended under the guidelines but falls below the statutory
minimum. Id.
Similarly, the statutory guidelines expressly provide for a court’s discretion

with regard to offenses under the Michigan vehicle code. Id. For vehicle code
offenses, if a statute both mandates a minimum sentence and authorizes
departure from that minimum, it is not a departure under the guidelines if the
court imposes a sentence in excess of the guidelines range but below the
mandatory minimum. Id.
In People v Hendrix, 263 Mich App 18, 19-20 (2004), modified in part by 471 *Now MCL
Mich 926 (2004), the court sentenced the defendant to one year of probation 257.625(9)(c).
to be served in the county jail although the range recommended by the
guidelines for the defendant’s conviction was 0 to 11 months. Contrary to the
prosecution’s argument, MCL 257.625(8)(c)* did not require the court to
impose a mandatory minimum sentence—the provision required only that if
the court chose to sentence the defendant to prison (one of the two alternatives
available), the minimum term must be one year. Hendrix, supra at 22.
Accordingly,
“the sentence imposed was not in violation of the statute or

otherwise an abuse of discretion. Further, even though defendant’s
sentencing guidelines range was only 11 months, the imposition of
the one year sentence, equal to the mandatory minimum of
Department of Corrections imprisonment specified in MCL
257.625(8)(c)(i), was ‘not a departure’ under MCL 769.34(2)(a).”
Id.
Mandatory determinate sentences. When a statute mandates a determinate

penalty or the penalty for an offense is mandatory life imprisonment, the court
must impose that sentence. MCL 769.34(5). The sentencing guidelines do not
apply to sentences imposed for those crimes. Id.
Sentences pursuant to valid plea agreements. A trial court need not

articulate a substantial and compelling reason for a sentence exceeding the
recommended minimum under the guidelines when the sentence is the result
of a valid plea agreement. People v Wiley, 472 Mich 153, 154 (2005).
Enhancement under the repeat offender provision of MCL 333.7413(2).

When MCL 333.7413(2) permits a court to impose a sentence of not more
than twice the term otherwise authorized, the enhancement authority extends
to both the minimum and maximum terms. People v Williams, 268 Mich App
416, 428 (2005). For example, if the recommended minimum range under the

Section 8.51
guidelines is 5 to 23 months, §7413(2) permits an increase in both the upper

and lower limit of the recommended range so that the allowable range would
be 10 to 46 months. Williams, supra at 431. When, subject to the ranges
discussed above, a court imposes a minimum sentence of 38 months, the
sentence falls within the enhanced range authorized by §7413(2). Williams,
supra at 430-431. Therefore, even though a term of 38 months exceeds the
original range of 5 to 23 months, the sentence does not represent a departure
for which a trial court must articulate a substantial and compelling reason. Id.
*People v Determining whether probation is an authorized alternative to

Buehler, 268 imprisonment. The legislative sentencing guidelines expressly authorize
Mich App 475
(2005) (Buehler
probationary terms for offenses subject to the guidelines when the
I), vacated by recommended minimum sentence range falls within an intermediate sanction
People v cell. MCL 769.31(b). Therefore, absent any substantial and compelling reason
Buehler, 474 for departure, when an offense is expressly made subject to the legislative
Mich 1081
(2006) (Buehler sentencing guidelines, probation is a valid alternative sentence only if the
II); People v properly scored guidelines place a defendant in an intermediate sanction cell.
Buehler (On People v Buehler, 477 Mich 18 (2007) (Buehler IV).* According to the
Remand), 271
Mich App 653
Buehler IV Court:
(2006) (Buehler
III). “[P]robation is available [under MCL 771.1(1)] for all
nonenumerated crimes; however, this fact does not lead to the
conclusion that sentencing courts have unfettered discretion to
impose probation for all such crimes. . . . [I]f the offense is subject
to the mandatory sentencing guidelines[,] . . . [t]he minimum
sentence . . . must be within the minimum guidelines sentence
range. In some instances, the Legislature has determined that
probation is a permissible sentence within the sentence range, such
as when the guidelines call for an intermediate sanction. However,
the guidelines do not indicate that probation is available for ranges
that require a minimum term of imprisonment. Therefore,
probationary sentences constitute a downward departure from any
sentencing guidelines range that does not permit the imposition of
intermediate sanctions.” Buehler IV, supra at 27-28.
Because the defendant in this case was convicted of indecent exposure by a

sexually delinquent person, MCL 750.335a, an offense expressly made
subject to the legislative sentencing guidelines by MCL 777.16q, the
defendant’s sentence must be within the range indicated by properly scored
sentencing guidelines. MCL 769.34(2). Even though MCL 771.1 does not
prohibit a probationary sentence for a conviction of MCL 750.335a, the
legislative sentencing guidelines govern the conviction because “[w]hen there
is a conflict between statutes that are read in para materia, the more recent and
more specific statute controls over the older and more general statute.”
Buehler IV, supra at 26.
Where as here, more than two statutes were in conflict—the legislative

sentencing guidelines, MCL 777.16q and MCL 769.34(2), conflicted with
both MCL 750.335a and MCL 771.1—the more recent and more specific

statute controlled. The Court of Appeals properly concluded that the

legislative sentencing guidelines controlled over the older and more general
indecent exposure statute. However, the Court of Appeals failed to apply the
same analysis to the conflict between the legislative sentencing guidelines and
the probation statute. Said the Buehler IV Court:
“The sentencing guidelines were enacted after the probation

statute, and they are more specific in that they provide a detailed
and mandatory procedure for sentencing involving all enumerated
crimes. Therefore, the sentencing guidelines control for a crime
that could be punished under the guidelines or with probation.”
Buehler IV, supra at 27.
In this case, the trial court could have departed from the recommended
guidelines range only if there was a substantial and compelling reason for
departure. Id. at 28. Absent such a reason, probation was not appropriate
because the defendant’s guidelines score placed him in a prison cell, not an
intermediate sanction cell for which probation would have been appropriate.
Part X—Selected Post-Sentencing Issues

In addition to other relevant and applicable preservation requirements, a copy *See Section
of the defendant’s PSIR* must accompany any appellate brief if an issue on 8.4 for
information on
appeal concerns the defendant’s sentence. MCL 769.34(8)(b); MCR PSIRs.
7.212(C)(7); People v Callon, 256 Mich App 312, 332 (2003). When
appealing any sentence imposed under the statutory guidelines, MCL
769.34(8) also requires that the record filed for appeal includes “[a]n entire
record of the sentencing proceedings . . . [and a]ny other reports or documents
the sentencing court used in imposing sentence.” MCL 769.34(8)(a) and (c).
Note: “An error in scoring the judicial [sentencing] guidelines

does not provide a basis for appellate relief.” People v Walker
(Robert), ___ Mich ___, ___ (2009), citing People v Raby, 456
Mich 487, 496 (1998).
A trial court may correct an invalid sentence, but unless the law permits such *As amended,
a change, a trial court cannot modify a valid sentence once the sentence is effective
January 1,
imposed. MCR 6.429(A); People v Moore, 468 Mich 573, 579 (2003). Either 2006.
party (defendant or prosecutor) may file a motion to correct an invalid
sentence. MCR 6.429(A).* Prosecutorial appeals are governed by MCL
770.12. A criminal defendant’s right to appeal is governed by Const 1963, art
1, §20, MCL 770.3, and MCR 7.203(A)-(B).
A sentence must be tailored to the individual offense and offender; at the same
time, a sentence “must satisfy society’s need for protection and interest in
Section 8.52
maximizing the offender’s rehabilitative potential.” People v Harris, 224

Mich App 597, 600 (1997), citing People v Miles, 454 Mich 90, 98 (1997).
Because of a sentence’s dual obligations, a sentence may be invalid without
regard to which party benefits from the error. Harris, supra at 600.
*As amended, Pursuant to MCR 6.429(B),* the time requirements for filing a motion to
effective correct an invalid sentence are as follows:
January 1,
2006.
“(1) A motion to correct an invalid sentence may be filed before
the filing of a timely claim of appeal.
“(2) If a claim of appeal has been filed, a motion to correct an

invalid sentence may only be filed in accordance with the
procedure set forth in MCR 7.208(B) or the remand procedure set
forth in MCR 7.211(C)(1).
“(3) If the defendant may only appeal by leave or fails to file a

timely claim of appeal, a motion to correct an invalid sentence may
be filed within 6 months of entry of the judgment of conviction and
sentence.
“(4) If the defendant is no longer entitled to appeal by right or by

leave, the defendant may seek relief pursuant to the procedure set
forth in subchapter 6.500.”
Note: Until January 1, 2006, the text of MCR 6.429(A) and (B)
states:
“(A) Authority to Modify Sentence. The court may correct

an invalid sentence, but the court may not modify a valid
sentence after it has been imposed except as provided by
law.
“(B) Time for Filing Motion.
“(1) A motion for resentencing may be filed within

42 days after entry of the judgment.
“(2) If a claim of appeal has been filed, a motion for

resentencing may only be filed in accordance with
the procedure set forth in MCR 7.208(B) or the
remand procedure set forth in MCR 7.211(C)(1).
“(3) If the defendant fails to file a timely claim of

appeal, the defendant may file a motion for
resentencing within the time for filing an
application for leave to appeal.
“(4) If the defendant is no longer entitled to appeal

by right or by leave, the defendant may seek relief

pursuant to the procedure set forth in subchapter

6.500.”
As set forth above, effective January 1, 2006, the deadline for filing a motion
to correct an invalid sentence under MCR 6.429(B) is six months after entry
of the judgment of conviction and sentence. In Administrative Order No.
2005-2, the Court clarified that the rule is inapplicable to cases in which an
order appointing appellate counsel entered before or on December 31, 2005.
In cases in which an order appointing appellate counsel entered before or on
December 31, 2005, a defendant must file a motion to correct an invalid
sentence within 12 months of the date of the order appointing appellate
counsel.
A. Invalid Sentences
A sentence is invalid under the following circumstances:
 When it violates the “two-thirds rule” in People v Tanner* and MCL *387 Mich 683,
769.34(2)(b). 689-690 (1972).
See Section
8.27 for more
 When it exceeds statutory limits. People v Shipley, 256 Mich App 367,
informa-tion.
378 (2003). A sentence in excess of the statutory limit is only invalid
to the extent it exceeds the statutory limit. MCL 769.24; People v
Thomas, 447 Mich 390, 393 (1994).
 When it is an impermissible combination of terms. People v Parish,
282 Mich App 106, 108 (2009) (the defendant’s sentence of 126
months to life in prison violated MCL 769.9(2), which provides that
“[t]he court shall not impose a sentence in which the maximum
penalty is life imprisonment with a minimum for a term of years
included in the same sentence”).
 When concurrent sentences were imposed and consecutive sentencing *See Section
was mandatory.* People v Thomas, 223 Mich App 9, 11 (1997). The 8.28 for more
information on
due process afforded by a resentencing hearing is required when a concurrent and
defendant is exposed to a greater possible penalty or when a consecutive
defendant’s original sentence would be “drastically increased” by the sentencing.
modified sentence. Thomas, supra at 15-16.
 When, even if it is within the statutory limits, the sentence is based on *See Section
constitutionally impermissible grounds or on any constitutionally 8.21 for more
information on
infirm prior convictions.* People v Wyrick, 265 Mich App 483, 492 unconstitu-
(2005); Miles, supra at 96. tional prior
convictions.
Where a trial court implies that it might impose a more lenient
sentence if the defendant provided the court with information that
required the defendant to effectively admit his guilt, the court
“violated [the defendant’s] constitutional right against self-
incrimination” and the sentence is invalid. People v Conley, 270
Mich App 301, 314-316 (2006).

Section 8.52
The statutory mandate of MCL 769.34(10)—a minimum sentence

within the appropriate guidelines range must be affirmed on
appeal unless it was based on inaccurate information or a scoring
error—does not override the relief due a defendant for a
“sentencing error[] of constitutional magnitude.” Conley, supra at
316. According to the Conley Court:
“It is axiomatic that a statutory provision, such as

MCL 769.34(10), cannot authorize action in
violation of the federal or state constitutions.”
Conley, supra at 316.
There exists no presumption that a court considered an

unconstitutional prior conviction simply because the conviction
was included in the information before the court at the time of
sentencing. People v Alexander, 234 Mich App 665, 672 (1999).
For such an issue to merit review, there must be some affirmative
evidence that a sentencing court actually considered the
conviction in question. Id.
 When it is influenced by the court’s improper assumption of the

defendant’s guilt on a charge yet to be tried. Wyrick, supra at 492;
Miles, supra at 96.
 When the court mistakenly imposes consecutive sentences without
statutory authority to do so. Alexander, supra at 677-678.
Resentencing in such a case is not required because unlike the
situation in Thomas, supra at 9, the Alexander defendant’s due process
rights were not implicated. Alexander, supra at 678. In Thomas,
resentencing made the defendant vulnerable to an increased total term
of incarceration, and under the circumstances present in the case, the
sentencing court may have sentenced the defendant to shorter
individual terms. Id. In Alexander, a resentencing hearing was
unnecessary because correction of the invalid sentence would result in
a decrease in the Alexander defendant’s overall prison term, and the
circumstances of the case did not suggest that absent the sentencing
error, the court would have imposed shorter sentences. Id.
 When it is based on local sentencing policy instead of reflecting a
sentence tailored to the individual defendant. Wyrick, supra at 492;
Miles, supra at 96; People v Chapa, 407 Mich 309, 311 (1997).
 When, due to its mistaken belief in the law or its misunderstanding of
a sentencing statute, the trial court believed it had no discretion over a
defendant’s sentence. People v Sexton, 250 Mich App 211, 228
(2002).
A sentence was invalid when a sentencing court failed to recognize

that it had discretion and imposed consecutive sentences under the
mistaken belief that consecutive sentencing was mandatory.

People v Daniels, 69 Mich App 345, 349-350 (1976). See also

People v Mauch, 23 Mich App 723, 730-731 (1970) (sentencing
court erroneously believed the applicable habitual offender statute
required it to impose a maximum sentence equal to twice the term
permitted for a first offense when the statute merely allowed the
court to impose a maximum term of up to twice the term for a first
offense).
A trial court is not required to establish for the record that, when
applicable, the court recognizes its sentencing discretion and is
exercising that discretion with regard to a sentence it imposes.
People v Knapp, 244 Mich App 361, 389 (2001). In the absence of
record evidence that a court wrongly believed it had no discretion,
a court is presumed to know the law and the judicial discretion the
law authorizes. Knapp, supra at 389; Alexander, supra at 674-675.
 When a court fails to utilize a reasonably updated PSIR when *See Section
imposing the sentence.* People v Hemphill, 439 Mich 576, 580 8.4(E) for more
information.
(1992).
 When the defendant and the defendant’s counsel are not given the *See Section
opportunity to address the court before the sentence is imposed. MCR 8.23 for
information on
6.425(E)(1)(c); People v Wells, 238 Mich App 383, 392 (1999).* allocution.
 When it is based on inaccurate information. Miles, supra at 96.

Resentencing was required where the trial court sentenced the
defendant to a lesser consecutive sentence based on an error in the
defendant’s PSIR; because the PSIR did not show the defendant’s
previous felony-firearm conviction, the court erroneously sentenced
the defendant to a consecutive term of two years instead of five years.
Miles, supra at 98.
B. Correcting Invalid Sentences
The proper remedy for a violation of the two-thirds rule in MCL 769.34(2)(b)
and People v Tanner, 387 Mich 390 (1994), is a reduction in the minimum
sentence. People v Floyd, 481 Mich 938 (2008), citing People v Thomas, 447
Mich 390 (1994).
Even when a court imposes a sentence within the guidelines,* the court must *Decided under
“articulate a basis for the sentence.” People v Triplett, 432 Mich 568, 570 the judicial
guidelines.
(1989), citing People v Coles, 417 Mich 523, 549 (1983). When a court
imposes a minimum sentence that falls within the range recommended by the
guidelines, the court may satisfy the articulation requirement by making
reference to the guidelines and to the defendant’s sentence. Triplett, supra at
570, citing People v Broden, 428 Mich 343, 354-355 (1987). Where no
explanation is offered, the case must be remanded to the sentencing court to
provide such an explanation, but resentencing is not required. Triplett, supra
at 573. See Part V for detailed information about sentencing hearings.

Section 8.52
The requirement that a trial court articulate the reasons for imposing a
sentence may be satisfied by the court’s explicit or implicit indication that it
relied on the sentencing guidelines in fashioning the sentence imposed.
People v Conley, 270 Mich App 301, 312-313 (2006).
Effective July 13, 2005, MCR 6.425(E)(1)(e) no longer contains a

requirement that a court articulate its reasons for imposing the sentence given.
In the amended rule, a court’s articulation of its reasons for imposing the
sentence given is conditioned on the court’s imposing a sentence outside the
guidelines range. As amended, MCR 6.425(E)(1)(e) states that “if the
sentence imposed is not within the guidelines range [the court must] articulate
the substantial and compelling reasons justifying that specific departure[.]”
A sentencing court’s failure to respond to a defendant’s presentation of

evidence in support of a downward departure may result in a remand to the
court “to consider properly presented factors and [to provide] further
clarification of what role, if any, th[o]se potential factors played in the
ultimate sentencing decision.” People v Michielutti, 266 Mich App 223, 228
(2005), citing Triplett, supra at 571-573.
Resentencing is not required where correction of the invalid sentence is

ministerial. Miles, supra at 98-99. However, a court must provide notice to all
parties of any change made to a sentence. MCL 769.27 states:
“If the court changes any sentence imposed under this act in any
respect, the clerk of the court shall give written notice of the
change to the prosecuting attorney, the defendant, and the
defendant’s counsel. The prosecuting attorney, the defendant’s
counsel, or the defendant may file an objection to the change. The
court shall promptly hold a hearing on any objection filed.”
Remand to correct errors in a defendant’s SIR or PSIR is mandatory. People

v Spanke, 254 Mich App 642, 650 (2003). Remand is necessary where an error
in the defendant’s PSIR results in “a real and substantial likelihood that the
inaccurate information will affect [the defendant’s] chances for parole,” even
if the court did not rely on the erroneous information in sentencing the
defendant. People v Cato, unpublished opinion per curiam of the Court of
Appeals, decided June 3, 2004 (Docket No. 246619) (codefendant admitted
shooting the decedent but defendant’s PSIR indicated he was the shooter).
A sentence need not be wholly invalid to merit correction. Wyrick, supra at

492. A trial court’s mistaken belief that it was required to report the
defendant’s convictions to the Secretary of State “constituted an invalid
aspect of the sentence” for which the defendant was entitled to relief. Id.
“Where a sentence is partially invalid, only the invalid part is to be vacated for
resentencing; however, a wholly invalid sentence is to be vacated in its
entirety, and resentencing is to be de novo.” People v Parish, 282 Mich App
106, 108 (2009). In Parish, supra at 107, the defendant’s sentence of 126

months to life in prison violated MCL 769.9(2), which provides that a court
“shall not impose a sentence in which the maximum penalty is life
imprisonment with a minimum for a term of years included in the same
sentence.” The Court of Appeals held that the defendant’s original sentence
was wholly invalid because it was “an impermissible combination of terms.”
Parish, supra at 108. Because the sentence was wholly invalid, the trial court
was not limited to imposing “a new and valid maximum term [of
imprisonment]” when it resentenced the defendant. The Court explained that
the trial court was not precluded from imposing a new sentence with a longer
minimum term because resentencing on a wholly invalid sentence is de novo.
Id. at 107-108. Accordingly, the Court affirmed the defendant’s amended
sentence of 210 to 360 months in prison. Id. at 107, 109.
C. No Remedy Available, Permitted, or Necessary
Even where the circumstances seemed to justify the trial court’s decision to
vacate a defendant’s sentences, the court was without authority to modify the
sentences because they were valid. People v Whalen, 412 Mich 166, 168-169
(1981) (the FBI’s promises to the defendant in exchange for his acting as an
informant were unenforceable in the defendant’s state prosecutions).
A trial court’s uncertainty about the parolable life sentence it imposed on a

defendant does not entitle the defendant to later be resentenced when the law
ultimately did not accommodate the court’s intention. People v Moore, 468
Mich 573, 580 (2003). In Moore, the trial court clearly expressed its intention
that—despite imposing a sentence of life imprisonment—the defendant be
considered for parole under MCL 791.234. Moore, supra at 580. The Moore
Court emphasized that “the sentencing judge did not express any intention
that defendant actually be paroled, but only that the Parole Board consider
whether to parole him.” Id. The Parole Board did consider the defendant for
parole and expressed “no interest” in pursuing the matter; therefore, the trial
court’s expectations were satisfied. The fact that the Parole Board did not take
action on the defendant’s parole did not offend the trial court’s intentions at
the defendant’s initial sentencing. In fact, the “misapprehension or
misunderstanding” claimed by the court was simply the court’s ignorance of
“the infrequency with which the Parole Board would grant parole to
defendants sentenced to life terms.” Id.
When a scoring change advanced by the defendant would not change the
defendant’s placement in the appropriate sentencing grid, remand for
resentencing is not required. People v Houston, 261 Mich App 463, 473
(2004).
Note: However, a defendant must be resentenced when the initial sentence is

based on a cell range resulting from a scoring error, even if the court’s initial
sentence falls within the cell range indicated after the error is corrected.
People v Francisco, 474 Mich 82, 88-92 (2006).

Section 8.52
A defendant must also be resentenced when the initial sentence represents an

upward departure from a cell range resulting from a scoring error, absent any
record indication that the trial court would have departed to the same extent
had the guidelines been properly scored. People v Lathrop, 480 Mich 1036
(2008).
*Order for See e.g., People v Freeman, 476 Mich 863 (2006),* where even though the
resentencing in sentence imposed on the defendant was within the guidelines range as
lieu of granting
leave to appeal
calculated without the scoring error, resentencing was required because the
the decision in trial court referenced a different guidelines range (the guidelines range as
People v calculated using the incorrect OV score) when it imposed the defendant’s
Freeman, initial sentence.
memorandum
opinion of the
Court of A court may not modify a defendant’s sentence once the defendant has begun
Appeals, issued serving it. In re Parole of Bivings, 242 Mich App 363, 371 (2000). A
February 16,
2006 (Docket
defendant on parole after serving a portion of his or her sentence is “still in the
No. 258261). ‘legal custody and control’ of the [Department of Corrections],” and a court
is not authorized to revisit the defendant’s sentence. Id.
Once a defendant is discharged from parole, the Department of Corrections

(DOC) is not permitted to cancel, revoke, or rescind a parole discharge order
after the final order of discharge has been entered. People v Holder, 483 Mich
168, 173 (2009). In Holder, supra at 169-171, the defendant committed
several crimes after being discharged from parole, and thereafter, he received
notice from the DOC that his parole discharge was cancelled. The DOC then
asked the trial court to amend the defendant’s judgment of sentence to reflect
that the sentence imposed was to be served consecutively to the sentence for
which the defendant was on parole. However, without statutory authority,
“the DOC’s effort to retroactively cancel [the] defendant’s parole discharge
had no legal effect on [the] defendant’s parole status.” Id. at 170. Therefore,
the Supreme Court held that the trial court did not have the authority to modify
the defendant’s sentence under MCR 6.429(A), because the sentence was
valid when it was imposed. Holder, supra at 170, 177.
Absent a clear legal or procedural error, once a defendant has begun serving
a sentence imposed by the trial court, that court no longer has jurisdiction over
the defendant or the defendant’s sentence. People v Wybrecht, 222 Mich App
160, 166-167 (1997). Where “the trial court did not declare defendant’s prior
sentences invalid on any established ground,” the court was prohibited from
revisiting the sentence it imposed on the defendant. Wybrecht, supra at 167.
A trial court is without authority to modify a defendant’s sentence “on the
basis of post hoc discretionary sentencing criteria”—or the court’s “change of
heart.” Id. at 168. Review of a sentence’s proportionality is limited to the
appellate courts or to other forums as directed by an appellate court. Id. at 162,
168-170.
A defendant may not impeach the validity of his or her sentence by submitting
additional information to the sentencing court after sentence has been
imposed. Id. at 171-172. If the information sought to be admitted was

discoverable before sentencing, the defendant waived the right to have the
court consider it. Id. at 172.
Where there is adequate record evidence in support of the trial court’s scoring,
the appellate court may fairly decipher scoring issues and a remand for
rescoring is unnecessary. People v Hernandez, 443 Mich 1, 16-18 (1993);
People v Hornsby, 251 Mich App 462, 468 (2002).
A trial court may—after the defendant has left the courtroom but before he or
she has left the building and before entry of a written order—impose a
different sentence than the sentence first ordered. People v Dansby,
unpublished opinion per curiam of the Court of Appeals, decided February 17,
2005 (Docket No. 251732). In Dansby, the trial court sentenced the defendant
to a sentence within the guidelines. After sentencing,
“defendant left the courtroom but had not left the building when
the trial court realized it mispoke, called the parties back, and
imposed the higher sentence, which was also within the
guidelines.”
According to the Court of Appeals,
“Because the trial court never entered an order based on the

original sentence that it stated during the sentencing hearing, there
was no judgment of sentence to modify. The trial court, therefore,
did not exceed its authority in recalling defendant to the courtroom
five minutes later to correct its previous misstatement.” Dansby,
supra (citation omitted).
D. Sentences Imposed Under the Statutory Guidelines
1. Sentences Within the Guidelines Range
Provided that the defendant’s PRVs and OVs were correctly scored and
the trial court did not rely on inaccurate information in determining the
sentence, the Court of Appeals must affirm any sentence imposed when
the sentence is within the minimum range recommended under the
guidelines. MCL 769.34(10); People v Leversee, 243 Mich App 337, 348
(2000). (The legislative mandate to affirm sentences within the guidelines
does not violate the state or federal separation of powers doctrine. People
v Garza, 469 Mich 431, 435 (2003).) Notwithstanding the mandate in
MCL 769.34(10), and under certain circumstances, a defendant may
appeal a sentence when the sentence is within the guidelines.
See e.g., People v Conley, 270 Mich App 301, 313-317 (2006). Where a
sentencing court implies it would be more lenient if the defendant
provided the weapon used in the offense even though the defendant has
consistently maintained his innocence with regard to weapon use, the
court violates the defendant’s constitutional right against self-

Section 8.52
incrimination—an error that overrides the legislative mandate in MCL

769.34(10).
See also People v Francisco, 474 Mich 82, 88-92 (2006). A defendant
must be resentenced when his or her sentence is derived from a cell range
resulting from a scoring error, even when the sentence imposed is within
the cell range indicated after the error is corrected.
*Order for See e.g., People v Freeman, 476 Mich 863 (2006),* where even though
resentencing in the sentence imposed on the defendant was within the guidelines range as
lieu of granting calculated without the scoring error, resentencing was required because
leave to appeal
the decision in
the trial court referenced a different guidelines range (the guidelines range
People v as calculated using the incorrect OV score) when it imposed the
Freeman, defendant’s initial sentence.
memorandum
opinion of the The requirements for appealing a sentence within the guidelines are found
Court of
Appeals, issued
in MCL 769.34(10) and MCR 6.429(C). By an amendment effective June
February 16, 29, 2004, the language in the court rule was made identical to the language
2006 (Docket used in MCL 769.34(10):
No. 258261).
“A party shall not raise on appeal an issue challenging the
scoring of the sentencing guidelines or challenging the
accuracy of information relied upon in determining a
sentence that is within the appropriate guidelines sentence
range unless the party has raised the issue at sentencing, in
a proper motion for resentencing, or in a proper motion to
remand filed in the court of appeals.”
In other words, a sentence within the guidelines is appealable
• if there is a scoring error or if the court relied on inaccurate

information in determining the defendant’s sentence, and
• if the scoring error or the inaccurate information was raised at the

sentencing hearing, in a motion for resentencing, or in a motion to
remand.
Note: Effective January 1, 2006, references in MCR

6.429(B) to “a motion for resentencing” will be replaced
with the phrase “a motion to correct an invalid sentence.”
However, the reference in MCR 6.429(C) to “a motion for
resentencing” was unchanged by these amendments so that
subsection (C) will be the only provision in MCR 6.429
where the phrase “a motion for resentencing” appears.

Objections to scoring accuracy. Where a defendant’s sentence is within *The plain error
the guidelines and the defendant first challenges the accuracy of his or her standard of
scores on appeal, the defendant has not properly presented the issue for review is
discussed in
appeal, and the appellate court need not review the issue. MCL subsection (E),
769.34(10); MCR 6.429(C); People v Harmon, 248 Mich App 522, 530 below.
(2002). An unpreserved sentencing error may, however, be reviewed for
plain error pursuant to People v Carines, 460 Mich 750, 763-764 (1999).*
People v McLaughlin, 258 Mich App 635, 670 (2003); Callon, supra at
332.
Proportionality. There is no statutory authority for an appellate court to

consider a defendant’s challenge to the proportionality of his or her
sentence if the sentence is within the guidelines range. MCL 769.34(10);
People v Pratt, 254 Mich App 425, 429-430 (2003). In fact, a sentence
within the guidelines is presumptively proportionate. People v Babcock,
469 Mich 247, 263-264 (2003). See also People v Greaux, 461 Mich 339,
342 (2000) (same ruling under the judicial sentencing guidelines).
2. Sentences Outside the Guidelines Range
MCL 769.34(7) and MCR 6.425(F)(4) authorize defendants to appeal a *A sentence

sentence outside the guidelines range* on that basis alone. However, “outside the
unlike MCL 769.34(10) and MCR 6.429(C) (provisions applicable to guidelines
range” is a
sentences within the guidelines), MCL 769.34(7) and MCR 6.425(F)(4), departure.
the provisions governing sentences outside the guidelines, make no Departures are
mention of preservation requirements. Even though the language used in discussed in
MCL 769.34(7) and MCR 6.425(F)(4) is not identical, there is no conflict detail in
between the two provisions and neither one requires something the other Sections 8.48–
8.50, above.
does not. The language in MCR 6.425(F)(4) is as follows:
“When imposing sentence in a case in which sentencing

guidelines enacted in 1998 PA 317, MCL 777.1 et seq., are
applicable, if the court imposes a minimum sentence that is
longer or more severe than the range provided by the
sentencing guidelines, the court must advise the defendant
on the record and in writing that the defendant may seek
appellate review of the sentence, by right if the conviction
followed trial or by application if the conviction entered by
plea, on the ground that it is longer or more severe than the
range provided by the sentencing guidelines.”
MCL 769.34(7) states:
“If the trial court imposes on a defendant a minimum

sentence that is longer or more severe than the appropriate
sentence range, as part of the court’s advice of the
defendant’s rights concerning appeal, the court shall
advise the defendant orally and in writing that he or she
may appeal the sentence as provided by law on grounds
that it is longer or more severe than the appropriate
sentence range.”

Section 8.53
According to People v Kimble, 470 Mich 305 (2004), the preservation

conditions placed on a defendant’s ability to appeal a sentence within the
guidelines do not apply to a defendant’s appeal of a sentence that is not
within the range indicated by the guidelines. The Kimble Court stated:
“[A] sentence that is outside the appropriate guidelines

sentence range, for whatever reason, is appealable
regardless of whether the issue was raised at sentencing, in
a motion for resentencing, or in a motion to remand.” Id. at
310.
Note: A defendant must be resentenced when his or her sentence is

derived from a cell range resulting from a scoring error, even when the
sentence imposed represented a departure from the cell range. People v
Lathrop, 480 Mich 1036 (2008).
E. Standards of Review
 Scoring errors and other challenges to guidelines scoring are reviewed

for an abuse of discretion. People v Drohan, 264 Mich App 77, 89
(2004), lv gtd on other grounds 472 Mich 881 (2005).
 In cases involving a sentence departure, whether a particular factor
exists is reviewed for clear error, whether a factor is objective and
verifiable is reviewed de novo, and whether a reason is substantial and
compelling is reviewed for an abuse of discretion. Babcock, supra at
265.
 Unpreserved errors involving sentencing are reviewed for plain error.
McLaughlin, supra at 670. The plain error standard requires a
defendant to show that an obvious error occurred in the sentencing
process and that the error affected the defendant’s substantial rights.
Kimble, supra at 312, citing Carines, supra at 763. The defendant
must also show that the error prejudiced him or her, i.e., that it affected
the outcome of the proceedings, and had a serious effect on “the
fairness, integrity or public reputation of judicial proceedings[.]” Id.
 Whether the statutory sentencing guidelines were properly applied is
an issue that is reviewed de novo. People v Hegwood, 465 Mich 432,
436 (2001).
 Whether a trial court’s understanding of the law constitutes a
misapprehension of the law is a question of law, and questions of law
are reviewed de novo. People v Moore, 468 Mich 573, 579 (2003).
8.53 Probation Revocation
This section discusses probation revocation only to the extent necessary to

adequately address the procedure involved in a sentencing court’s disposition

of a matter involving revocation of probation. For a complete discussion of

probation revocation proceedings (including automatic waiver cases
involving juveniles), see Miller, Criminal Procedure Monograph 7:
Probation Revocation—Revised Edition (MJI, 2006-April 2009). For
additional information on juvenile probation and revocation, see Miller,
Juvenile Justice Benchbook: Delinquency & Criminal Proceedings—Revised
Edition (MJI, 2003-April 2009).
A probation violation is not a crime, and a ruling that a defendant has violated
probation is not a new conviction. People v Perks (On Remand), 259 Mich
App 100, 108-109 (2003), citing People v Kaczmarek, 464 Mich 478 (2001).
Therefore, where a probationer’s probation is revoked for a probation
violation, the sentence imposed after revocation relates to the offense for
which the probationer was granted probation. In other words, revocation of an
offender’s probation permits the court to resentence the offender on the
original offense. MCL 771.4; Kaczmarek, supra at 483.
MCR 6.445(G) addresses the scope of a trial court’s authority after finding
that a probationer has violated a condition of probation. MCR 6.445(G) states,
in part:
“(G) Sentencing. If the court finds that the probationer has violated
a condition of probation, or if the probationer pleads guilty to a
violation, the court may continue probation, modify the conditions
of probation, extend the probation period, or revoke probation and
impose a sentence of incarceration.”
If the court, after a contested hearing or following the probationer’s plea, *MCR 6.425(E),
determines that revocation of probation is appropriate, the subsequent as amended,
effective July
sentencing is subject to requirements outlined in MCR 6.425(B) and (E),* 13, 2005,
which are discussed briefly, below. See Part V, “The Sentencing Hearing,” for contains
a comprehensive examination of a sentencing hearing’s requirements. information
formerly found
in MCR 6.425
When a sentence of incarceration is imposed following the revocation of (D)(2) and (3).
probation, MCL 771.4 authorizes the sentencing court to sentence the
defendant to the same penalty that could have been imposed if probation had
not been granted. The legislative sentencing guidelines apply to a sentence of
imprisonment following probation revocation when the offense for which the
defendant was sentenced to probation was committed on or after January 1,
1999. People v Hendrick, 472 Mich 555, 560 (2005); MCL 769.34(2).
See also People v Church, 475 Mich 865 (2006), where the Michigan
Supreme Court reiterated its holding in Hendrick, supra, that the statutory
sentencing guidelines apply to sentences imposed after probation revocation.
In Church, the Court issued a peremptory order vacating the sentences
imposed on a defendant after his probation was revoked and remanding the
case to the trial court for resentencing. The order, in part, stated the following:

Section 8.53
“The sentencing guidelines apply to sentences imposed after

probation revocation. People v Hendrick, 472 Mich 555, 560
(2005). Defendant’s minimum sentencing guidelines range is 7 to
23 months. The trial court did not articulate substantial and
compelling reasons for imposing a minimum sentence of 40
months. On remand, the trial court shall sentence defendant within
the appropriate sentencing guidelines range, or articulate on the
record a substantial and compelling reason for departing from the
sentencing guidelines range in accordance with People v Babcock,
469 Mich 247 (2003). Under Hendrick, supra at 564, the acts
giving rise to the probation violation may provide a substantial and
compelling reason to depart.” Church, supra at 865.
An offender sentenced to prison after probation revocation must be afforded

the same rights and procedure as is an offender sentenced to prison
immediately after conviction. An offender must be represented by counsel at
his or her sentencing hearing unless the defendant has validly waived the
assistance of counsel. People v Johnson, 386 Mich 305, 317 (1971).
After an offender’s probation is revoked, MCR 6.445(G) requires that a court

“hav[e] considered a current presentence report” before it can sentence an
offender to prison. MCR 6.445(G) also requires that the court comply with
MCR 6.425(B), which states that “[t]he court must provide copies of the
presentence report to the prosecutor and the defendant’s lawyer, or the
defendant if not represented by a lawyer, at a reasonable time before the day
of sentencing.”
*When the MCR 6.445(G), the court rule that specifically addresses sentencing after
offense for probation revocation, does not expressly refer to MCR 6.425(D) as a
which probation
was first
provision to which the court must adhere when sentencing an offender after
granted probation revocation. MCR 6.445(G) requires the sentencing court to review
occurred on or a current presentence report before sentencing a defendant to prison after
after January 1, probation revocation. MCR 6.425(D) requires that a defendant’s presentence
1999.
report be accompanied by proposed scoring of the sentencing guidelines.
Because Hendrick has determined that the guidelines apply to sentences
imposed after probation revocation,* proposed scoring of the guidelines must
accompany the presentence report of a defendant being sentenced after
probation revocation. MCR 6.425(D).
After probation revocation, the court must sentence the offender “within a
reasonably prompt time[.]” MCR 6.445(G); MCR 6.425(E)(1). On the record
at the sentencing hearing, the court must establish that the parties “have had
an opportunity to read and discuss the presentence report[.]” MCR
6.425(E)(1)(a).
Each party must be given the chance to explain information found in the PSIR
or to challenge the accuracy or relevancy of information in the PSIR, and if
any challenges are raised, the court must resolve them. MCR 6.425(E)(1)(b).

MCR 6.425(E)(2) sets forth the procedure by which the court is to resolve any
challenges to information in a PSIR:
“Resolution of Challenges. If any information in the presentence

report is challenged, the court must allow the parties to be heard
regarding the challenge, and make a finding with respect to the
challenge or determine that a finding is unnecessary because it will
not take the challenged information into account in sentencing. If
the court finds merit in the challenge or determines that it will not
take the challenged information into account in sentencing, it must
direct the probation officer to
“(a) correct or delete the challenged information in the

report, whichever is appropriate, and
“(b) provide defendant’s lawyer with an opportunity to

review the corrected report before it is sent to the
Department of Corrections.”
In addition to the opportunity to challenge information in the PSIR at

sentencing, the defendant, the defendant’s lawyer, the prosecutor, and the
victim must be permitted to inform the court of any circumstances they
believe it should consider in imposing sentence. MCR 6.425(E)(1)(c).
The court must announce the sentence being imposed, state the minimum and
maximum terms if applicable, and indicate whether the defendant is entitled
to any credit for time served. MCR 6.425(E)(1)(d).
Time served in jail toward a term imposed as a condition of probation is not

the equivalent of time served toward a jail term had a defendant been
sentenced to jail rather than probation. People v McKeown, 228 Mich App
542, 545 (1998). Therefore, a defendant is not entitled to credit for any time
he or she spent in jail as a condition of probation when the defendant is
sentenced to incarceration after probation revocation. Id.
In determining that the sentencing guidelines apply to sentences imposed after

probation revocation, the Hendrick Court emphasized that MCL 771.4 does
not limit a sentencing court to imposing only a sentence that could have been
imposed immediately after the defendant’s conviction. A sentence imposed
pursuant to MCL 771.4
“is clearly permissive, not mandatory. It states that ‘if’ probation

is revoked, the court ‘may’ sentence the defendant as if probation
had never been granted. While the sentencing court may sentence
the probationer in the same manner and to the same penalty,
nothing in the statute requires it to do so.” Hendrick, supra at 561-
562.

Section 8.53
Because MCL 771.4 does not mandate a particular sentence, a sentencing

court may depart from the range recommended under the guidelines. In so
doing, “it is perfectly acceptable to consider postprobation factors in
determining whether substantial and compelling reasons exist to warrant an
upward departure from the legislative sentencing guidelines.” Hendrick,
supra at 562-563 (footnote omitted).
See also People v Church, 475 Mich 865 (2006), where the Michigan
Supreme Court reiterated its holding in People v Hendrick, 472 Mich 555, 560
(2005), that the statutory sentencing guidelines apply to sentences imposed
after probation revocation. In Church, the Court issued a peremptory order
vacating the sentences imposed on a defendant after his probation was
revoked and remanding the case to the trial court for resentencing. The order,
in part, stated the following:
“The sentencing guidelines apply to sentences imposed after

probation revocation. People v Hendrick, 472 Mich 555, 560
(2005). Defendant’s minimum sentencing guidelines range is 7 to
23 months. The trial court did not articulate substantial and
compelling reasons for imposing a minimum sentence of 40
months. On remand, the trial court shall sentence defendant within
the appropriate sentencing guidelines range, or articulate on the
record a substantial and compelling reason for departing from the
sentencing guidelines range in accordance with People v Babcock,
469 Mich 247 (2003). Under Hendrick, supra at 564, the acts
giving rise to the probation violation may provide a substantial and
compelling reason to depart.” Church, supra at 865.
Note: The Hendrick Court’s holding is retroactive because the

resulting rule of law—that the legislative guidelines apply to
sentences imposed after probation revocation when the initial
crime was committed on or after January 1, 1999—“was clearly
foreshadowed” by the unambiguous language in MCL 769.34(2)
and MCL 771.4. People v Parker, 267 Mich App 319, 327-328
(2005).
As with a sentence imposed immediately after a defendant’s conviction, when

a court departs from the guidelines when sentencing a defendant after a
probation revocation, the court must “articulate the substantial and
compelling reasons justifying that specific departure[.]” MCR 6.425(E)(1)(e).
An individual’s probation violation alone—without regard to the specific

conduct underlying the violation—may constitute a substantial and
compelling reason to depart from the sentencing guidelines. People v
Schaafsma, 267 Mich App 184, 186 (2005). According to the Schaafsma
Court:
“[A]ny probation violation represents an affront to the court and an

indication of an offender’s callous attitude toward correction and

toward the trust the court has granted the probationer. The
violation is objective and verifiable, so we see no reason why a
court must focus exclusively on the underlying conduct, especially
since the conduct itself may be punished in a separate proceeding.
We conclude that the offender’s probation violation itself is an
objective and verifiable factor worthy of independent
consideration. Because the probation violation is objective and
verifiable, the trial court in its discretion may conclude that the
factor provides a substantial and compelling reason to depart from
the sentencing guidelines.” Id. at 185-186.
The final court rule provision to which MCR 6.445(G) refers is MCR *See Section
6.425(E)(2)(f), which requires the sentencing court to “order that the 8.37 for more
information on
defendant make full restitution* as required by law to any victim of the restitution.
defendant’s course of conduct that gives rise to the conviction, or to that
victim’s estate.”

Section 8.53

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Criminal Procedure Monograph 8: Felony Sentencing

September-December 2009 Updates

8.2(C) History of Sentencing in Michigan

8.2(D) History of Sentencing in Michigan

8.6(B) Scoring an Offender’s Offense Variables (OVs)

8.6(M) Scoring an Offender’s Offense Variables (OVs)

8.6(T) Scoring an Offender’s Offense Variables (OVs)

Ordinarily, “a general denial of accusation by a defendant cannot support the scoring of OV

8.52 Appellate Review of Felony Sentences

8.52 Appellate Review of Felony Sentences

May-August 2009 Updates

8.6(H) OV 7—Aggravated Physical Abuse

8.6(J) OV 9—Number of Victims

8.6(K) OV 10—Exploitation of a Vulnerable Victim

8.9(B) Felony Offenses enumerated in MCL 777.18 (Offenses Predicated on an

8.30 Additional Information to Consider Before Imposing Sentence

8.31 Sentence Credit

Part II—Scoring the Statutory Sentencing Guidelines

Michigan Judicial Institute © 2005–December 2009 Page 1

M. OV 12—Contemporaneous Felonious Criminal Acts..............................78

Part III—Recommended Minimum Sentences for Offenders

Part IV—Habitual Offender Provisions

Page 2 Monograph 8—Felony Sentencing (2005–December 2009)

B. Application of the General Habitual Offender Statutes to Cases

Part V—The Sentencing Hearing

Part VI—Fashioning an Appropriate Sentence

Michigan Judicial Institute © 2005–December 2009 Page 3

Part VII—Fines, Costs, Assessments, and Restitution

Part VIII—Specific Types of Sentences

Part IX—Sentence Departures

Page 4 Monograph 8—Felony Sentencing (2005–December 2009)

Part X—Selected Post-Sentencing Issues

8.1 Scope of This Monograph

The primary objective of this monograph is to present a comprehensive

Discussion of evidentiary or constitutional challenges to the criminal

Michigan Judicial Institute © 2005–December 2009 Page 5

it relates to juveniles. For a detailed discussion of proceedings involving

8.2 History of Sentencing in Michigan

Since a 1902 amendment to the state constitution, the Michigan Legislature

“When a person is convicted for the first time for committing a

in all cases except as provided in this chapter and shall be stated

By adopting the constitutional amendment pertaining to indeterminate

B. Judicial Discretion and Appellate Review of

“Convinced as we are, that a sentence with too short an interval

The Michigan Supreme Court unequivocally authorized appellate review of a

C. The Judicial Sentencing Guidelines

The first sentencing guidelines were designed by an advisory committee

“The[ judicial sentencing] guidelines were designed to reduce

Page 8 Monograph 8—Felony Sentencing (2005–December 2009)

until the Legislature enacted the statutory sentencing guidelines in December

2. Criticism of the Judicial Sentencing Guidelines

Revision of the judicial sentencing guidelines was prompted by criticism

Revision of the judicial sentencing guidelines was also prompted by the

Michigan Judicial Institute © 2005–December 2009 Page 9

D. The Statutory Sentencing Guidelines

With the enactment of 1994 PA 445, the Legislature established a nineteen-

“with the goal of developing sentencing guidelines that would

1. Policy Objectives, Organization, and Content

The Commission’s sentencing guidelines incorporated the policy

• Violent offenses and violent offenders should be treated more

• Sentences should be proportionate to both the seriousness of the

• There should exist a standard governing a trial court’s imposition